Citation[]
United States v. Irving, 2003 WL 22127913 (S.D.N.Y. Sept. 15, 2003), aff'd, 432 F.3d 401 (2d Cir. 2005) (full-text).
Appellate Court Proceedings[]
The court prefaced its analysis by stating that a border search is valid pursuant to the Fourth Amendment, even when non-routine, if it is supported by reasonable suspicion. The court then pointed to a number of factors that courts may consider in determining whether reasonable suspicion is present, including any "unusual conduct of the defendant, discovery of incriminating matter during routine searches, computerized information showing propensity to commit relevant crimes, or a suspicious itinerary."[1]
In affirming the border search of floppy diskettes because customs agents had reasonable suspicion that the diskettes contained child pornography, the court noted that:
| “ | [T]he customs agents found both the 3.5 inch computer diskettes and the undeveloped film after they collected the following information: Irving was a convicted pedophile; he was the subject of criminal investigation; he had been to Mexico; he claimed that he visited an orphanage while in Mexico; and his luggage contained children's books and drawings that appeared to be drawn by children. These all constitute specific and articulable facts, and thus may serve as the basis of reasonable suspicion. | ” |
Comment[]
It is worth noting that the court did not rely on the lower court's problematic comparison of computer searches to searches of luggage to affirm the lower court's decision. The district court had suggested that since both computer equipment and luggage are "closed containers," they are therefore subject to "routine" border searches,[2] but the appellate court did not take up this line of reasoning.