Is There a Border Exception to the Exclusionary Rule?
Volume 87, No. 3, Spring 2015
By Jody Thomas López-Jacobs, J.D., Temple University Beasley School of Law [PDF]

On the morning of April 6, 2007, Howard Cotterman and his wife drove across the U.S.-Mexico border into Arizona. At the border, officials detained Cotterman upon learning that he was a convicted sex offender and may be involved in child sex tourism. Cotterman was permitted to leave the border crossing at six o’clock that night, but his laptop remained with the officials. The following day, a border agent conducted a forensic search of Cotterman’s laptop and discovered dozens of images of child pornography. All of the images were located in the unallocated space on his computer, where deleted data is temporarily stored before it is overwritten. Officials later obtained access to password-protected files on the laptop, which contained over three hundred more images of child pornography. Facing a likely conviction, Cotterman moved to suppress the images. Cotterman argued that the forensic search of his laptop violated the Fourth Amendment and thus should be excluded at trial. Addressing this novel issue, the en banc Ninth Circuit ultimately upheld the constitutionality of the forensic search. Accordingly, the images would be admissible at his trial.

Cotterman moved to suppress the evidence based on the exclusionary rule. Over fifty years ago, the United States Supreme Court proclaimed that evidence obtained in violation of the Fourth Amendment cannot be used in state court to sustain a criminal conviction. The outgrowth of this proclamation has stimulated divisive arguments and a wealth of literature. Commentators continue to debate the merits of the exclusionary rule, and some have argued for limiting the rule or abandoning it altogether. Although the Supreme Court has carved out some exceptions to the rule, it still remains a part of Fourth Amendment jurisprudence.

Although there were two initial justifications for the rule, the Court has since consistently proclaimed that the sole purpose of the rule is to deter police misconduct. Commentators disagree as to whether the rule in fact deters officials from obtaining evidence in violation of the Fourth Amendment. Consequently, some argue for delineated exceptions to the exclusionary rule. Others have proposed dispensing with the rule in its entirety and adopting an alternative rule that more adequately balances the benefits of deterrence against the social costs of excluding incriminating evidence.

The Supreme Court has declined to exclude evidence illegally seized by certain non–law enforcement officials. It has not, however, considered whether the rule is appropriate in the context of searches by border officials at the border. Rather, courts have reflexively presumed the exclusionary rule applies to such evidence without significant discussion. In light of the dearth of case law on this issue, it does not appear that any federal prosecutor has argued that the exclusionary rule is always inapplicable at the border.

Now is an appropriate time to analyze the applicability of the exclusionary rule to searches at the border. Such an analysis of the applicability of the exclusionary rule may impact the current debate regarding the level of cause required for certain invasive searches at the border. Additionally, nonexclusion would have significant consequences for law enforcement practices at the border. The U.S. Customs and Border Protection (CBP) agency employed over sixty thousand workers in 2012. Together, these employees admit almost one million passengers and pedestrians into the United States per day. In 2012, they apprehended almost one thousand suspects, discovered nearly five thousand harmful agricultural products and pests, and seized over five tons of illegal drugs. Finding the exclusionary rule inapplicable to border searches would effectively grant license to border officials to conduct more invasive or constitutionally questionable searches because evidence obtained from such searches would be admissible during a criminal trial.

Nonexclusion, however, would have some benefits. In cases like Cotterman, where the court had to discuss the constitutionality of the forensic search of the laptop, courts could avoid conducting difficult Fourth Amendment analyses. This is because criminal defendants would have no incentive to challenge the constitutionality of a search if the evidence would be admissible at trial regardless of the result. Accordingly, nonexclusion would effectively decrease the administrative burden on the courts and decrease the likelihood that contraband could be smuggled across the border. On the other hand, exclusion may be the only effective bulwark against unconstitutional border searches because border officials already have substantial discretion to conduct suspicionless searches.

The issue of the exclusionary rule’s applicability to searches at the border is even more relevant in light of the Supreme Court’s trend toward limiting the applicability of the exclusionary rule. Over the past few decades, the Court has created numerous categorical exceptions to the exclusionary rule. Justice Anthony Kennedy, the Court’s notorious swing voter on criminal justice issues, has also expressed a willingness to consider arguments limiting the applicability of the exclusionary rule in the border context. Accordingly, it is both helpful and timely to anticipate and address this issue now—before the suppression issue is thrust upon courts in criminal proceedings where it will have real consequences to the liberty of criminal defendants.

This Comment argues in favor of continuing to exclude evidence at trial that was uncovered by an illegal search or seizure at the border. Part II.A reviews the relevant case law and commentary on the exclusionary rule. As Part II.A.1.a illustrates, these authorities demonstrate that the “primary concern” of the offending official’s conduct is a significant consideration when determining whether application of the exclusionary rule would deter misconduct. Part II.B includes a brief discussion of the relaxed standard for searches at the border and relevant authority regarding the applicability of the exclusionary rule at the border. Part II.C follows with a short discussion of CBP policies and procedures for searches at the border. Section III presents various arguments for application of the exclusionary rule at the border in light of the authority discussed in Section II. Section III argues that the exclusionary rule should apply in the context of illegal border searches because doing so would serve the rule’s purpose of deterring Fourth Amendment violations by law enforcement.