                Case: 17-11561       Date Filed: 05/23/2018       Page: 1 of 25


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-11561
                               ________________________

                      D.C. Docket No. 1:15-cr-00045-MHC-JKL-1



UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,
                                             versus

KARL TOUSET,

                                                                    Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                       (May 23, 2018)

Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and
CORRIGAN, * District Judge.

WILLIAM PRYOR, Circuit Judge:



*
  Honorable Timothy J. Corrigan, United States District Judge for the Middle District of Florida,
sitting by designation.
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      This appeal presents the question whether the Fourth Amendment requires

reasonable suspicion for a forensic search of an electronic device at the border.

U.S. Const. amend. IV. Karl Touset appeals the denial of his motions to suppress

the child pornography found on electronic devices that he carried with him when

he entered the country and the fruit of later searches. We recently held that the

Fourth Amendment does not require a warrant or probable cause for a forensic

search of a cell phone at the border. United States v. Vergara, 884 F.3d 1309 (11th

Cir. 2018). Touset argues that, in the light of the decision of the Supreme Court in

Riley v. California, 134 S. Ct. 2473 (2014), reasonable suspicion was required for

the forensic searches of his electronic devices. But our precedents about border

searches of property make clear that no suspicion is necessary to search electronic

devices at the border. Alternatively, the border agents had reasonable suspicion to

search Touset’s electronic devices. We affirm.

                                I. BACKGROUND

      After a series of investigations by private organizations and the government

suggested that Karl Touset was involved with child pornography, border agents

forensically searched his electronic devices after he arrived at the Atlanta airport

on an international flight. Xoom, a company that transmits money, identified

several people it suspected were involved with child pornography based on a

pattern of “frequent low money transfers to” individuals in “source countries for



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sex tourism and child pornography,” including the Philippines. Xoom alerted the

National Center for Missing and Exploited Children and notified Yahoo because

some of the people it suspected were involved with child pornography used Yahoo

email and messenger accounts.

      Yahoo then conducted its own investigation into the accounts identified by

Xoom and found a file with child pornography in the account for the email address

iloveyousomuch0820@yahoo.com. This email account listed a phone number in

the Philippines. Yahoo then sent tips to the National Center, which notified the

Cyber Crime Center of the Department of Homeland Security.

      While performing its own investigation, the Cyber Center subpoenaed

transaction data related to the iloveyousomuch0820@yahoo.com email account

and the Philippine phone number associated with it from several companies that

transmit money. One of those companies, Western Union, provided information

about an account associated with the Philippine phone number. The information

established that an account that listed Touset’s name and a post office box in

Marietta, Georgia, had sent three payments to the account associated with the

Philippine phone number. In March 2013, the account associated with Touset sent

a payment of $35 to the account associated with the Philippine phone number; in

April 2013, it sent another payment of $35; and in July 2013, it sent a payment of

$37. Based on this information, the Department placed a “look-out” on Touset so



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that his luggage and electronic devices would be searched when he returned to the

country.

      After Touset arrived on an international flight at the airport in Atlanta,

Georgia, on December 21, 2014, Derek Escobar, an officer of the Customs and

Border Protection Agency, inspected Touset’s luggage. Touset had two iPhones, a

camera, two laptops, two external hard drives, and two tablets. Escobar manually

inspected the iPhones and the camera, found no child pornography, and returned

those devices to Touset. But the Agency detained the remaining electronic devices,

and computer forensic analysts at the Department later searched them. Forensic

searches revealed child pornography on the two laptops and the two external hard

drives.

      Based on that information, Dianna Ford, a special agent of the Department,

obtained a warrant to search Touset’s home in Marietta, Georgia. Ford and about

14 other agents executed the warrant on January 28, 2015. During the execution of

the warrant, Ford and another agent read Touset his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and recorded an interview with him. Ford arrested

Touset after that interview.

      Evidence obtained by the government established that Touset purchased

thousands of images of child pornography. Over the course of several years,

Touset sent more than $55,000 to the Philippines for pornographic pictures, videos,



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and webcam sessions. In some webcam sessions, he instructed prepubescent girls

to display and manipulate their genitals. Touset also created an Excel spreadsheet

that documented the names, ages, and birthdates of those young girls as well as his

notes about them.

      A grand jury indicted Touset on three counts: knowingly receiving child

pornography, 18 U.S.C. § 2252(a)(2) & (b)(1); knowingly transporting and

shipping child pornography, 18 U.S.C. § 2252(a)(1) & (b)(1); and knowingly

possessing a computer and computer-storage device containing child pornography,

18 U.S.C. § 2252(a)(4)(B) & (b)(2). Touset initially pleaded not guilty to the

charges.

      Touset filed motions to suppress the evidence obtained from his electronic

devices at the border, as well as the fruit of those searches. After an evidentiary

hearing at which Escobar and Ford testified, the magistrate judge recommended

denying Touset’s motions to suppress. The magistrate judge explained that the

parties agreed that the government “needed reasonable suspicion of criminal

activity in order to lawfully detain for further analysis and search [Touset’s]

electronic devices.” The magistrate judge found that reasonable suspicion was

present because “[t]he collective information of the officers allowed the reasonable

inference that Touset had made three small payments through Western Union to an

entity in the Philippines, a country known for child exploitation,” and that entity



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“used an email address that had previously received or sent child pornography.”

And the magistrate judge rejected Touset’s argument that, because his most recent

payment to the Western Union account associated with the Philippine phone

number occurred about one-and-a-half years before his electronic devices were

searched, that evidence was stale. Instead, the magistrate judge found that the

evidence of Touset’s payments was not stale because “[f]iles on a computer are

less likely than other types of contraband to disappear over time and can often be

recovered even if they are deleted.”

      The district court adopted the magistrate judge’s report and recommendation

over Touset’s objections. The district court relied on the decision of the Ninth

Circuit in United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc),

and concluded that reasonable suspicion is required for a forensic search of

electronic devices at the border. The district court found that reasonable suspicion

existed for the detention and forensic search of Touset’s electronic devices. And

the district court agreed with the magistrate judge that the evidence was not stale.

      Touset pleaded guilty to knowingly transporting child pornography, but

reserved his right to appeal the denial of his motion to suppress. The government

dismissed the other two counts. And the district court sentenced Touset to 120

months of imprisonment and supervision for life.




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                           II. STANDARD OF REVIEW

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Ransfer, 749 F.3d 914,

921 (11th Cir. 2014) (quoting United States v. Bervaldi, 226 F.3d 1256, 1262 (11th

Cir. 2000)). We construe “all facts . . . in the light most favorable to the prevailing

party below.” Id. (quoting Bervaldi, 226 F.3d at 1262). And “[t]he individual

challenging the search bears the burdens of proof and persuasion.” United States v.

Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007) (citation and internal quotation

marks omitted).

                                  III. DISCUSSION

      We divide our discussion in two parts. First, we explain that the Fourth

Amendment does not require any suspicion for forensic searches of electronic

devices at the border. Second, we explain that, in the alternative, the searches of

Touset’s electronic devices were supported by reasonable suspicion.

   A. The Fourth Amendment Permits Forensic Searches of Electronic Devices
                       at the Border Without Suspicion.

      The Fourth Amendment to the Constitution provides, “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 . . . .” U.S. Const. amend. IV. Ordinarily,


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“reasonableness requires the obtaining of a judicial warrant.” United States v.

Vergara, 884 F.3d 1309, 1312 (11th Cir. 2018) (alteration adopted) (quoting Riley

v. California, 134 S. Ct. 2473, 2482 (2014)). But border searches are different. Id.

      As we recently reiterated, searches at the border of the country “‘never’

require probable cause or a warrant.” Id. (quoting United States v. Ramsey, 431

U.S. 606, 619 (1977)). The First Congress—the same one that proposed the Fourth

Amendment—empowered customs officials to stop and search without a warrant

any vessel or cargo suspected of illegally entering our nation. See Act of July 31,

1789, ch. 5, § 24, 1 Stat. 29, 43 (1789); Ramsey, 431 U.S. at 616–17 (“The

historical importance of the enactment of this customs statute by the same

Congress which proposed the Fourth Amendment is, we think, manifest.”); Boyd v.

United States, 116 U.S. 616, 623 (1886) (“[I]t is clear that the members of that

body did not regard searches and seizures of [contraband] as ‘unreasonable,’ and

they are not embraced within the prohibition of the [Fourth] [A]mendment.”). And

a year later, Congress expanded that power by permitting customs officials to

board vessels even before they reached the United States. See Act of Aug. 4, 1790,

ch. 35, § 31, 1 Stat. 145, 164–65 (1790); United States v. Villamonte-Marquez, 462

U.S. 579, 584 (1983).

      “Import restrictions and searches of persons or packages at the national

borders rest on different considerations and different rules of constitutional law



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from domestic regulations.” United States v. 12 200-Ft. Reels of Super 8MM. Film,

413 U.S. 123, 125 (1973). Congress has “broad powers . . . to prevent smuggling

and to prevent prohibited articles from entry,” id., under its plenary authority “[t]o

lay and collect Taxes, Duties, Imposts and Excises,” U.S. Const. art. I, § 8, cl. 1,

“[t]o regulate Commerce with foreign Nations,” id. art. I, § 8, cl. 3, and “[t]o

establish a[] uniform Rule of Naturalization,” id. art. I, § 8, cl. 4. And because

child pornography is unprotected by the First Amendment, “Congress may declare

it contraband and prohibit its importation.” United States v. Thirty-Seven

Photographs, 402 U.S. 363, 376–77 (1971) (plurality opinion); accord 12 200-Ft.

Reels, 413 U.S. at 128–29; see also Osborne v. Ohio, 495 U.S. 103, 111 (1990)

(“[W]e cannot fault [the government] for attempting to stamp out [child

pornography] at all levels in the distribution chain.”).

      Ordinarily, searches at the border are reasonable without suspicion “simply

by virtue of the fact that they occur at the border.” United States v. Alfaro-

Moncada, 607 F.3d 720, 728 (11th Cir. 2010) (quoting Denson v. United States,

574 F.3d 1318, 1339 (11th Cir. 2009)). The Supreme Court has held that it is

reasonable to conduct without suspicion “[r]outine searches of the persons and

effects of entrants” at our borders. United States v. Montoya de Hernandez, 473

U.S. 531, 538 (1985). And we have similarly explained that, at the border, routine

“pat-down search[es] or frisk[s]” and searches of “[a] traveler’s luggage,”



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“[i]ncoming international mail,” and “[v]ehicles” are all reasonable “without any

level of suspicion.” Alfaro-Moncada, 607 F.3d at 728 (collecting cases). A

traveler’s “right to be let alone neither prevents the search of his luggage nor the

seizure of unprotected, but illegal, materials when his possession of them is

discovered during . . . a search.” Thirty-Seven Photographs, 402 U.S. at 376

(plurality opinion).

      The Supreme Court has never required reasonable suspicion for a search of

property at the border, however non-routine and intrusive, and neither have we.

Although in one decision the Supreme Court required reasonable suspicion for the

prolonged detention of a person until she excreted the contraband that she was

suspected of “smuggling . . . in her alimentary canal” or submitted to an x-ray or

rectal examination, Montoya de Hernandez, 473 U.S. at 541; see also id. at 534–

35, it has never applied this requirement to property. Nor has it “been willing to

distinguish . . . between different types of property.” Cotterman, 709 F.3d at 975

(Callahan, J., concurring in part, dissenting in part, and concurring in the

judgment). Indeed, it held in United States v. Flores-Montano that the government

may “remove, disassemble, and reassemble a vehicle’s fuel tank” at the border

without any suspicion. 541 U.S. 149, 155 (2004). It explained that “the reasons that

might support a requirement of some level of suspicion in the case of highly

intrusive searches of the person—dignity and privacy interests of the person being



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searched—simply do not carry over to vehicles.” Id. at 152. And it rejected a

judicial attempt to distinguish between “routine” and “nonroutine” searches and to

craft “[c]omplex balancing tests to determine what [constitutes] a ‘routine’ search

of a vehicle, as opposed to a more ‘intrusive’ search of a person.” Id. We have

been similarly unwilling to distinguish between different kinds of property. For

example, we have upheld “a search without reasonable suspicion of a crew

member’s living quarters on a foreign cargo vessel that [wa]s entering this

country,” Alfaro-Moncada, 607 F.3d at 727, even though “[a] cabin is a crew

member’s home—and a home ‘receives the greatest Fourth Amendment

protection,’” id. at 729 (quoting United States v. McGough, 412 F.3d 1232, 1236

(11th Cir. 2005)); accord id. at 732.

      We see no reason why the Fourth Amendment would require suspicion for a

forensic search of an electronic device when it imposes no such requirement for a

search of other personal property. Just as the United States is entitled to search a

fuel tank for drugs, see Flores-Montano, 541 U.S. at 155, it is entitled to search a

flash drive for child pornography. And it does not make sense to say that electronic

devices should receive special treatment because so many people now own them or

because they can store vast quantities of records or effects. The same could be said

for a recreational vehicle filled with personal effects or a tractor-trailer loaded with

boxes of documents. Border agents bear the same responsibility for preventing the



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importation of contraband in a traveler’s possession regardless of advances in

technology. Indeed, inspection of a traveler’s property at the border “is an old

practice and is intimately associated with excluding illegal articles from the

country.” Thirty-Seven Photographs, 402 U.S. at 376 (plurality opinion).

      In contrast with searches of property, we have required reasonable suspicion

at the border only “for highly intrusive searches of a person’s body.” Alfaro-

Moncada, 607 F.3d at 729. Even though the Supreme Court has declined to decide

“what level of suspicion, if any, is required for [such] nonroutine border searches

[of a person],” Montoya de Hernandez, 473 U.S. at 541 n.4, we have required

reasonable suspicion for “a strip search or an x-ray examination,” Alfaro-Moncada,

607 F.3d at 729. We have defined the “intrusiveness” of a search of a person’s

body that requires reasonable suspicion “in terms of the indignity that will be

suffered by the person being searched,” in contrast with “whether one search will

reveal more than another.” United States v. Vega-Barvo, 729 F.2d 1341, 1345

(11th Cir. 1984); accord id. at 1346. And “we have isolated three factors which

contribute to the personal indignity endured by the person searched: (1) physical

contact between the searcher and the person searched; (2) exposure of intimate

body parts; and (3) use of force.” Id. at 1346.

      These factors are irrelevant to searches of electronic devices. A forensic

search of an electronic device is not like a strip search or an x-ray; it does not



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require border agents to touch a traveler’s body, to expose intimate body parts, or

to use any physical force against him. Although it may intrude on the privacy of

the owner, a forensic search of an electronic device is a search of property. And

our precedents do not require suspicion for intrusive searches of any property at the

border. See Alfaro-Moncada, 607 F.3d at 728–29, 732.

      To be sure, the Fourth and the Ninth Circuits have concluded—in divided

decisions—that the Fourth Amendment requires at least reasonable suspicion for

forensic searches of electronic devices at the border. United States v. Kolsuz, ___

F.3d ____, No. 16-4687, slip op. at 19 (4th Cir. May 9, 2018); Cotterman, 709

F.3d at 968. In Cotterman, the Ninth Circuit equated a forensic search to “a

computer strip search,” 709 F.3d at 966, and stated that “[s]uch a thorough and

detailed search of the most intimate details of one’s life is a substantial intrusion

upon personal privacy and dignity,” id. at 968. And it reasoned that

“[i]ntrusiveness includes both the extent of a search as well as the degree of

indignity that may accompany a search.” Id. at 967 (quoting United States v.

Ramos-Saenz, 36 F.3d 59, 61 n.3 (9th Cir. 1994)). The Fourth Circuit later

explained that the intervening decision of the Supreme Court in Riley “confirmed”

that reasoning. Kolsuz, slip op. at 21. And it revived the distinction between routine

and nonroutine searches of property, see id. at 19–24, that the Supreme Court

rejected in Flores-Montano, 541 U.S. at 152.



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      We are unpersuaded. Although the Supreme Court stressed in Riley that the

search of a cell phone risks a significant intrusion on privacy, our decision in

Vergara made clear that Riley, which involved the search-incident-to-arrest

exception, does not apply to searches at the border. 884 F.3d at 1312 (“[T]he

Supreme Court expressly limited its holding to the search-incident-to-arrest

exception.”). And our precedent considers only the “personal indignity” of a

search, not its extensiveness. Vega-Barvo, 729 F.2d at 1346. Again, we fail to see

how the personal nature of data stored on electronic devices could trigger this kind

of indignity when our precedent establishes that a suspicionless search of a home at

the border does not. See Alfaro-Moncada, 607 F.3d at 729, 732. Property and

persons are different. See Flores-Montano, 541 U.S. at 152.

      We are also unpersuaded that a traveler’s privacy interest should be given

greater weight than the “paramount interest [of the sovereign] in protecting . . . its

territorial integrity.” Id. at 153. The Ninth and Fourth Circuits stressed the former

interest and asserted that travelers have no practical options to protect their privacy

when traveling abroad. For example, the Ninth Circuit explained that it is

“impractical, if not impossible, for individuals to make meaningful decisions

regarding what digital content to expose to the scrutiny that accompanies

international travel” and that “removing files unnecessary to an impending trip” is

“a time-consuming task that may not even effectively erase the files.” Cotterman,



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709 F.3d at 965. The Fourth Circuit added that “it is neither ‘realistic nor

reasonable to expect the average traveler to leave his digital devices at home when

traveling.’” Kolsuz, slip op. at 21 (quoting United States v. Saboonchi, 990 F.

Supp. 2d 536, 556 (D. Md. 2014)). But a traveler’s “expectation of privacy is less

at the border,” Flores-Montano, 541 U.S. at 154, and the Fourth Amendment does

not guarantee the right to travel without great inconvenience, even within our

borders, see Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1179 (11th Cir. 2014)

(holding that airport screening “is a reasonable administrative search under the

Fourth Amendment”); see also Kolsuz, slip op. at 34 (Wilkinson, J., concurring in

the judgment) (“Our new world has brought inconvenience and intrusions on an

indiscriminate basis, which none of us welcome, but which most of us undergo in

the interest of assuring a larger common good.”). Anyone who has recently taken a

domestic flight likely experienced inconvenient screening procedures that require

passengers to unpack electronic devices, separate and limit liquids, gels, and

creams, remove their shoes, and walk through a full-body scanner. See Corbett,

767 F.3d at 1174 (explaining that a traveler must walk through a scanner or

undergo a pat-down in airports). Travelers “crossing a border . . . [are] on notice

that a search may be made,” Alfaro-Moncada, 607 F.3d at 732 (quoting United

States v. Hidalgo-Gato, 703 F.2d 1267, 1271 (11th Cir. 1983)), and they are free to

leave any property they do not want searched—unlike their bodies—at home.



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      In contrast with the diminished privacy interests of travelers, “[t]he

Government’s interest in preventing the entry of unwanted persons and effects is at

its zenith at the international border.” Flores-Montano, 541 U.S. at 152. As we

have explained, child pornography, no less than drugs or other kinds of contraband,

is prohibited from “enter[ing] the country,” Ramsey, 431 U.S. at 620, and the

government interest in stopping contraband at the border does not depend on

whether child pornography takes the form of digital files or physical photographs.

      Nothing in Riley undermines this interest. In Riley, the Supreme Court

explained that the rationales that support the search-incident-to-arrest exception—

namely the concerns of “harm to officers and destruction of evidence”—did not

“ha[ve] much force with respect to digital content on cell phones,” 134 S. Ct. at

2484, because “digital data” does not pose “comparable risks,” id. at 2485. But

“digital” child pornography poses the same exact “risk” of unlawful entry at the

border as its physical counterpart. If anything, the advent of sophisticated

technological means for concealing contraband only heightens the need of the

government to search property at the border unencumbered by judicial second-

guessing.

      Indeed, if we were to require reasonable suspicion for searches of electronic

devices, we would create special protection for the property most often used to

store and disseminate child pornography. With the advent of the internet, child



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pornography offenses overwhelmingly involve the use of electronic devices for the

receipt, storage, and distribution of unlawful images. See U.S. Sent’g Comm’n,

Federal Child Pornography Offenses 5, 71 (2012); see also United States v.

Williams, 553 U.S. 285, 307 (2008) (“Both the State and Federal Governments

have sought to suppress [child pornography] for many years, only to find it

proliferating through the new medium of the Internet.”). And law enforcement

officers routinely investigate child-pornography offenses by forensically searching

an individual’s electronic devices. See U.S. Sent’g Comm’n, supra, at 67–71. We

see no reason why we would permit traditional, invasive searches of all other kinds

of property, see Alfaro-Moncada, 607 F.3d at 724–25, 728, 732, but create a

special rule that will benefit offenders who now conceal contraband in a new kind

of property.

      After all, our nation has classified child pornography as contraband for good

reason. The possession of child pornography “harms and debases the most

defenseless of our citizens,” Williams, 553 U.S. at 307, in profound and lasting

ways. The harm that victims suffer during the production of child pornography “is

exacerbated by the[] circulation” of “a permanent record of the child[’s]

participation.” New York v. Ferber, 458 U.S. 747, 759 (1982); see also U.S. Sent’g

Comm’n, supra, at 118. Victims know that countless people may obtain their

images, see United States v. Pugh, 515 F.3d 1179, 1196 (11th Cir. 2008), and use



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them for sexual gratification, see U.S. Sent’g Comm’n, supra, at 113, 118. Victims

also know that their images may contribute to the abuse of new victims. See id.

The online promotion and sharing of child pornography validates the sexual

exploitation of children and “may incite or encourage others to sexually abuse

children.” United States v. Irey, 612 F.3d 1160, 1208 (11th Cir. 2010) (en banc);

see also U.S. Sent’g Comm’n, supra, at 312. And there is evidence that offenders

use child pornography to convince children to participate in their abuse. U.S.

Sent’g Comm’n, supra, at 312. Consumers of child pornography who “‘merely’ or

‘passively’ receive or possess child pornography directly contribute to this

continuing victimization.” Pugh, 515 F.3d at 1196 (quoting United States v. Goff,

501 F.3d 250, 259 (3d Cir. 2007)). And “[t]he greater the customer demand for

child pornography, the more that will be produced.” Irey, 612 F.3d at 1212

(quoting United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007)). We should

not invent heightened constitutional protection for travelers who cross our borders

with this contraband in tow.

      Of course, nothing prevents Congress from enacting laws that provide

greater protections than the Fourth Amendment requires. Indeed, Congress has

repeatedly exercised this power “to strike a balance between privacy and security

in the context of digital searches.” Kolsuz, slip op. at 32 (Wilkinson, J., concurring

in the judgment) (citing USA Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat.



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268; Wiretap Act, Pub. L. No. 90-351, 82 Stat. 197 (1961), amended by Electronic

Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848, and

Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108

Stat. 4279 (1994) (codified as amended at 18 U.S.C. §§ 2510–2522 (2012)); Orin

S. Kerr, The Effect of Legislation on Fourth Amendment Protection, 115 Mich. L.

Rev. 1117, 1120 (2017)). The First Congress required officers to have “reason to

suspect” the concealment of “goods, wares or merchandise subject to duty” before

the officers could “enter any ship or vessel” “to search for, seize, and secure any

such goods, wares or merchandise.” Act of July 31, 1789, ch. 5, § 24, 1 Stat. at 43.

More recently, Congress enacted special protections for financial records in the

Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, tit. XI, 92 Stat. 3641,

3697 (codified at 12 U.S.C. § 3408), and for cell tower location information in the

Stored Communications Act, Pub. L. No. 99-508, tit. II, 100 Stat. 1848, 1860

(1986) (codified at 18 U.S.C. §§ 2701–2712;); see also United States v. Davis, 785

F.3d 498, 519 (11th Cir. 2015) (en banc) (W. Pryor, J., concurring) (explaining that

the Stored Communications Act provides “additional protections” for that

information).

      Instead of “charging unnecessarily ahead,” we must allow Congress to

design the appropriate standard “through the more adaptable legislative process

and the wider lens of legislative hearings.” Kolsuz, slip op. at 30, 31 (Wilkinson, J.,



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concurring in the judgment). Such a “legislative process would be informed by

numerous representatives of the executive branch, who can lend their practical

insights and experience to the inquiry.” Id. at 33. “The dangers of judicial

standard-setting in an area as sensitive as border searches [are] . . . apparent.” Id.

“Simply put, we must apply the law and leave the task of developing new rules for

rapidly changing technologies to the branch most capable of weighing the costs

and benefits of doing so.” Davis, 785 F.3d at 520 (W. Pryor, J., concurring).

Judicial restraint is especially important in the context of border searches, “where

there is a longstanding historical practice . . . of deferring to the legislative and

executive branches.” Kolsuz, slip op. at 36 (Wilkinson, J., concurring in the

judgment).

        B. In the Alternative, Reasonable Suspicion Existed for the Forensic
                        Searches of Touset’s Electronic Devices.
      Alternatively, the district court correctly denied Touset’s motions to

suppress because the forensic searches of his electronic devices were supported by

reasonable suspicion. Touset argues that the government lacked reasonable

suspicion because the evidence that he sent three separate payments to the Western

Union account associated with a Philippine phone number was stale and because

the evidence did not show that he had possessed child pornography or would

possess it on his electronic devices. We disagree.




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      “Reasonable suspicion . . . must be based upon a ‘particularized and

objective basis for suspecting the particular person of criminal activity.’” Denson,

574 F.3d at 1341 (alteration adopted) (quoting United States v. Cortez, 449 U.S.

411, 417–18 (1981)). The “inquiry focuses on the information available to the

officers at the time of the stop.” United States v. Lewis, 674 F.3d 1298, 1305 (11th

Cir. 2012).

      The government had a “particularized and objective basis for suspecting”

that Touset possessed child pornography on his electronic devices. Denson, 574

F.3d at 1341 (citation and internal quotation marks omitted). The government

knew that Touset had sent three low-money transfers of $35, $35, and $37 to a

Western Union account; that the Western Union account was associated with a

Philippine phone number that was associated with the email account of

iloveyousomuch0820@yahoo.com; that the email account had contained an image

of child pornography; that the Philippines was a source country for child

pornography; that a pattern of “frequent low money transfers” is associated with

child pornography; and that Touset was traveling with nine electronic devices.

Together, this evidence provided reasonable suspicion for the forensic searches of

Touset’s electronic devices.

      The “staleness doctrine . . . requires that the information supporting the

government’s application for a warrant must show that probable cause exists at the



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time the warrant issues.” Bervaldi, 226 F.3d at 1264. And the staleness doctrine

also applies to reasonable suspicion. Id. at 1264–65; see also United States v.

Carter, 566 F.3d 970, 975 (11th Cir. 2009). “[S]taleness is an issue that courts

must decide by evaluating the facts of a particular case . . . .” United States v.

Domme, 753 F.2d 950, 953 (11th Cir. 1985). Courts consider “the length of time”

as well as “the nature of the suspected crime (discrete crimes or ongoing

conspiracy), habits of the accused, character of the items sought, and nature and

function of the premises to be searched.” Bervaldi, 226 F.3d at 1265 (citation and

internal quotation marks omitted). We have explained that “[t]here is no particular

rule or time limit for when information becomes stale.” Id.

      Our sister circuits have repeatedly rejected staleness challenges in appeals

involving child pornography. They have observed that “pedophiles rarely, if ever,

dispose of child pornography.” United States v. Zimmerman, 277 F.3d 426, 434 (3d

Cir. 2002); see also United States v. Burkhart, 602 F.3d 1202, 1206–07 (10th Cir.

2010); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008);

United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000). And probable cause of

involvement in electronic child pornography remains even longer because deleted

files can remain on electronic devices. See United States v. Frechette, 583 F.3d

374, 379 (6th Cir. 2009); Hay, 231 F.3d at 636. As the Tenth Circuit explained,

“information that a person received electronic images of child pornography is less



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likely than information about drugs, for example, to go stale because the electronic

images are not subject to spoilage or consumption.” Burkhart, 602 F.3d at 1207.

And other circuits have ruled that probable cause remained after passages of time

similar to the interval here. See, e.g., Frechette, 583 F.3d at 378–79 (16 months);

Morales-Aldahondo, 524 F.3d at 119 (three years).

      We are persuaded that the reasoning of our sister circuits applies in this

circumstance. The evidence that Touset made three separate payments to the

Western Union account associated with the Philippine phone number was not stale

about a year and a half later. That evidence suggested that Touset likely received

child pornography electronically and had child pornography stored on his

electronic devices.

                                IV. CONCLUSION

      We AFFIRM Touset’s judgment of conviction and sentence.




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CORRIGAN, District Judge, concurring in part and concurring in the judgment:

      I concur in the majority opinion, except as to Part III.A. As the Court notes,

the Fourth and Ninth Circuits have concluded that the Fourth Amendment requires

at least reasonable suspicion for forensic searches of electronic devices at the

border. See Maj. Op. at 13, citing United States v. Kolsuz, __ F.3d __, No. 16-

4687, slip op. at 19 (4th Cir. May 9, 2018), and United States v. Cotterman, 709

F.3d 952, 968 (9th Cir. 2013). In the district court, the government agreed that the

applicable Fourth Amendment test was whether there was reasonable suspicion of

criminal activity such that border agents could detain Touset’s electronic devices

for forensic analysis. The district court found reasonable suspicion and upheld the

search.

      However, on appeal, the government goes beyond its position in the district

court and argues that border agents need no justification whatsoever to detain (in

this case for seventeen days) and forensically search electronic devices of any

American citizen returning from abroad. This new-found government position

presents a different and difficult question, one not addressed by the Supreme Court

or (until today) any appellate court. In my view, this Court need not reach this

issue to decide this case. I therefore concur only in the Court’s alternative holding

that “the district court correctly denied Touset’s motions to suppress because the




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forensic searches of his electronic devices were supported by reasonable

suspicion.” Maj. Op. at 21.




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