                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA            )
                                    )
      v.                            )  Crim. Action No. 13-0100 (ABJ)
                                    )
JAE SHIK KIM,                       )
KARHAM ENG. CORP.,                  )
                                    )
                  Defendants.       )
____________________________________)

                         MEMORANDUM OPINION AND ORDER
       In this case involving the enforcement of export control laws and the trade embargo with

Iran, defendant Jae Shik Kim has moved to suppress the evidence the United States harvested from

a laptop computer it seized from him when he was departing the country through Los Angeles

International Airport. Kim is a Korean businessman with business operations in both Korea and

California, and in October of 2012, investigators with the Department of Homeland Security

obtained information that he was involved in a previous shipment of controlled articles to a

Chinese businessman in Korea, who then forwarded them to customers in Iran. The Special Agent

handling the investigation decided to search Kim’s laptop computer for evidence the next time

Kim came to the United States, and in December 2012, he obtained the computer from Kim before

permitting him to board his flight home. The next day, the laptop was shipped to an agency

forensic specialist in San Diego, who created an identical copy of the hard drive, which was then

searched using specialized software and a list of keywords. The thousands of files that were

extracted from the keyword search were then burned onto a DVD and returned to the case agent

for further review.

       After incriminating emails were uncovered through that process, the agent sought and

obtained a warrant based upon the content of the emails to conduct the search of the hard drive

                                               1
that had already been completed and to seize the emails that had already been reviewed. Those

emails now form a part of the basis of this prosecution, and Kim moves to suppress that evidence,

arguing that his rights under the Fourth Amendment of the Constitution have been violated.

       The government points to its plenary authority to conduct warrantless searches at the

border. It posits that a laptop computer is simply a “container” that was examined pursuant to this

authority, and it submits that the government’s unfettered right to search cargo at the border to

protect the homeland is the beginning and end of the matter.

       But to apply those principles under the facts of this case would mean that the border search

doctrine has no borders. The search of the laptop began well after Kim had already departed, and

it was conducted approximately 150 miles away from the airport. The government engaged in an

extensive examination of the entire contents of Kim’s hard drive after it had already been secured,

and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal

activity was afoot at the time Kim was about to cross the border, and there was little about this

search – neither its location nor its scope and duration – that resembled a routine search at the

border. The fundamental inquiry required under the Fourth Amendment is whether the invasion

of the defendant’s right to privacy in his papers and effects was reasonable under the totality of

the circumstances, and the Court finds that it was not.

                                   PROCEDURAL HISTORY

       On March 28, 2013, Kim and his company, Karham Eng. Corp. (“Karham”), were indicted

for violations of a number of statutes, including the International Emergency Economic Powers

Act (“IEEPA”), 50 U.S.C §§ 1701 et. seq., the Arms Export Control Act (“AECA”), 22 U.S.C.

§ 2778, and the International Traffic in Arms Regulation (“ITAR”), 22 C.F.R. pts. 120–30.

Indictment [Dkt. #1]. These laws and regulations govern economic sanctions imposed by the



                                                  2
United States against certain countries, such as Iran, and the export of certain “defense articles”

from the United States. The United States alleges that from around December 2007 through March

2010, defendants conspired to export defense articles without the required export licenses for sale

to intermediaries in China and Korea and ultimate customers in Iran. Indictment ¶ 17. The defense

articles at issue – six Q-Flex Accelerometers, Models QA-2000-10, QA-2000-20, or QA-3000 –

are aircraft parts manufactured by Honeywell Aerospace which are used in aircraft and missile

navigation systems. Indictment ¶¶ 3, 16(1), 17(3). They appear on the export control list, and an

export license is required before they may be exported legally from the United States. 22 U.S.C.

§ 2778(b)(2); 22 C.F.R. pt. 123.1(a).

       On March 2, 2015, defendants filed the instant motion to suppress. Defs.’ Mot to Suppress

Evidence [Dkt. # 35] (“Defs.’ Mot.”). The parties briefed the motion, Gov’t’s Opp. to Defs.’ Mot.

[Dkt. # 37] (“Gov’t Opp.”); Defs.’ Reply in Supp. of Defs.’ Mot. [Dkt. # 38] (“Defs.’ Reply”), and

the Court held an evidentiary hearing on April 7 and 8, 2015, at which the following facts were

established.

                                 FACTUAL BACKGROUND

       A.      The Government’s Investigation of Bin Yang

       In 2011, Special Agent Kevin Hamako of the Department of Homeland Security (“DHS”)

Homeland Security Investigations office was investigating a Chinese national, Bin Yang, also

known as Raymond Yang, for export control violations, specifically the unlawful export of

accelerometers to China and Iran. Mots. Hr’g Tr., April 7, 2015 (“4/7 Tr.”) at 7. As part of the

investigation, Special Agent Hamako worked with an undercover agent who communicated with

Yang by email and telephone. 4/7 Tr. at 14.




                                                3
       On April 1, 2011, Yang sent the undercover agent an email asking to obtain Honeywell

QA-3000-30’s from him, and he offered: “Because my uncle has a sudden schedule to USA, he

may could meet you and pay you.” Report of Investigation, No. 107, May 20, 2011, Gov’t Ex. 3

(“May 2011 ROI”) at 3.

       On April 4, 2011, Yang sent the undercover agent another email stating, “My uncle just

has his sudden trip to US, he may meet you and only see the goods and maybe pay you.” May

2011 ROI at 3.

       In an April 5, 2011 telephone conversation between Yang and the undercover agent, Yang

again volunteered that he had a contact who would be traveling to the United States who could

inspect the QA-3000 accelerometers that Yang hoped to buy. May 2011 ROI at 3; 4/7 Tr. at 15–

16. Yang proposed to have his “uncle” travel to the United States, inspect the accelerometers, and

provide payment for them. 4/7 Tr. at 15–16. He also stated he did not want his “uncle” to

physically carry the items out of the country because he was afraid that U.S. customs officials

would discover them. 4/7 Tr. at 16; see also Report of Investigation, No. 114, Jun. 22, 2011, Gov’t

Ex. 2 (“Jun. 2011 ROI”) at 3 (detailing information about the April 5, 2011 telephone call). At

that point, the unidentified “uncle” became a further subject of the investigation. 4/7 Tr. at 16.

       On April 27, 2011, Special Agent Hamako obtained and executed a warrant to search and

seize Yang’s emails, and on May 12, 2011, he received the emails. May 2011 ROI at 3; see also

4/7 Tr. at 17.         The emails included several communications with “Uncle Kim” at

JS@karham.co.kr:

                 •   an email dated June 24, 2010 from Yang to Kim that stated,
                     “There is an inquiry from a domestic client for Honeywell
                     products. It is not for military application and I confirm the end
                     user is not Iranian,” to which Kim responded on the same day,
                     “Thanks! Raymond, I will also check the Honeywell parts
                     whether [w]e can buy them.”

                                                   4
               •   emails between Yang and Kim from July 2010 relating to the
                   purchase of various items not subject to export controls

               •   an email from almost a year later, dated March 28, 2011, in
                   which Yang asked Kim if he could identify a source for other
                   parts that are not subject to controls: “Dear Uncle Kim Hi. I
                   have the inquiry for Honeywell QAT 185/160 model, about
                   150pcs for each model per year. 3pcs is a completed unit. First
                   trial order, the client will buy 9pcs for each model as a start. Do
                   you have any good sources to supply them.” On the same date,
                   Kim responded, “Now, Mr Ji are checking it with our USA
                   office. And also, Tomorrow, I will go to USA with Mr.Ji and
                   stopped in USA office. We will check it again and feed back
                   you soon.”

               •   an email from Yang to Kim dated April 1, 2011, stating: “I see
                   that you will go to U.S.A, it is very good. For your reference, I
                   get a message that there is supplier could supply us some stocks
                   of QA3000. But I don’t have successful business with him
                   before, but we could buy his goods if his stocks are ok. Dear
                   Uncle Kim, can you please have a check if you agree. We could
                   pay you, so you can buy it in USA. . . . QAT 185 and 160 are
                   not sensitive products, and if you can supply, we could buy from
                   you, and there is no worry to pay the deposit, because I trust my
                   uncle.”

May 2011 ROI at 4–6.

       On April 5, 2011, Yang had the recorded telephone call with the undercover agent

described above in which he proposed that his “uncle” could inspect the parts Yang hoped to buy.

As of May 2011, though, the agents were aware that Yang’s inquiry to Kim had borne no fruit and

the undercover operation was over. 4/7 Tr. at 72 (stating the agents knew “fairly soon after, within

maybe a couple of weeks” that the operation was not going ahead).

       B.      The Identification of “Uncle Kim” and his Companies

       On June 21, 2011, Special Agent Hamako was able to identify “Uncle Kim” as defendant

Jae Shik Kim by searching a government database for the JS@karham.co.kr email address. 4/7 Tr.

at 21–22; Jun. 2011 ROI at 3–4. The email address appeared in U.S. State Department records

                                                 5
on a non-immigrant visa application submitted by Kim. 4/7 Tr. at 21–22; Jun. 2011 ROI at 3. The

application provided Special Agent Hamako with other information about Kim, including his date

of birth, passport number, and nationality. Jun. 2011 ROI at 3–4; 4/7 Tr. at 22.

       From the visa application, Special Agent Hamako also determined that Kim was president

of corporate defendant Karham. 4/7 Tr. at 22. Through further research, he learned that Karham

was located in South Korea and Stevenson Ranch, California, and that Karham shared its

Stevenson Ranch, California address with a company called Apex Components. 4/7 Tr. at 22–23;

see also Jun. 2011 ROI at 3–5 (providing information about the identification of Kim).

       Special Agent Hamako researched Karham and Apex Components and found that Karham

was involved in the export and sale of equipment used in the oil industry and petrochemical

industries, including types of meters. 4/7 Tr. at 24. On a web-based government database, Special

Agent Hamako found approximately thirty-nine shipper’s export declarations (“SEDs”) from

Karham for the export of meters from the United States to Australia and South Korea. 4/7 Tr. at

24. He found eight shipper’s export declarations from Apex Components, which also showed

exports of various industrial equipment from the United States to South Korea. 4/7 Tr. at 25.

       Finally, Special Agent Hamako found travel records showing that defendant Kim arrived

in Los Angeles International Airport (“LAX”) on April 2, 2011, and departed LAX for Narita,

Japan on April 14, 2011. Jun. 2011 ROI at 4; see also 4/7 Tr. at 26.

       C.      Yang’s Arrest and Debrief

       Early the following year, in January 2012, Yang was arrested and, in May 2012, he was

extradited from Bulgaria to the United States. 4/7 Tr. at 9. He agreed to be debriefed by U.S.

authorities in an effort to ameliorate his sentence. 4/7 Tr. at 9; see also Search Warrant, Ex. B to




                                                 6
Defs.’ Mot. [Dkt. # 35-2] (“Search Warrant”); Aff. in Supp. of Appl. for Search Warrant, Ex. B to

Defs.’ Mot. [Dkt. # 35-2] (“SW Aff.”), at 7 n.1.

         On October 18, 2012, Special Agent Hamako interviewed Yang. 4/7 Tr. at 9; see also

Report of Investigation No. 146, Nov. 15, 2012, Gov’t Ex. 1 (“Nov. 2012 ROI”) at 3–5 (reporting

results of the Yang debrief). Yang told investigators that at some point in 2008 or 2009, he

purchased six QA-2000 accelerometers from Kim, which were shipped to him in China without

an export license. 4/7 Tr. at 10. Yang said that once he received the accelerometers, two of his

Iranian customers traveled from Iran to China to receive them directly. Id. Yang told Special

Agent Hamako that Kim purchased the accelerometers through his connections in the United

States, and they were shipped from the United States to China. 4/7 Tr. at 11; Nov. 2012 ROI at 3.

While this is not reflected in the report of the interview, Special Agent Hamako testified that Yang

also told him that Kim knew the accelerometers were destined for customers in Iran. 4/7 Tr. at 11.

         As a result of the Yang interview, Special Agent Hamako decided to conduct what he

characterized as a border search of Kim’s electronic devices “as he was leaving the U.S. on his

next travel.” 4/7 Tr. at 110.

                I wanted to know when [Kim] was returning to further my investigation in
                the sense that I wanted to be ready to conduct more proactive steps if he was
                in the U.S.; specifically, to include a border search, surveillance, or other
                activities to determine if he was engaged in any potential criminal activity
                while in the United States.

4/7 Tr. at 33. At that time, it was the agent’s understanding that no suspicion was required to

conduct a border search of any items Kim might be carrying, including electronic devices. 4/7 Tr.

at 32.

         Because of the ongoing investigation, Kim’s name was in DHS’s case management system,

which meant Special Agent Hamako would receive an automatic email if Kim was booked on a



                                                   7
flight to or from the United States. 4/7 Tr. at 32–33. Some time later, the agent received an email

notifying him that Kim was going to return to the United States in November 2012, and that he

would be departing LAX for South Korea on December 5, 2012. 4/7 Tr. at 33.

       D.      The December 5, 2012 Search of Kim

       Special Agent Hamako testified that while he understood that he had the authority to

conduct a border search of Kim without any level of suspicion that Kim was engaged in criminal

activity, 4/7 Tr. at 34, he had grounds for that suspicion in any event.

               At that time my suspicion was based on the debriefing of Yang in which
               Yang stated he had previously successfully procured ITAR controlled
               accelerometers from Mr. Kim, as well as the fact that Mr. Kim’s company
               appeared to be engaging in exports from the U.S. to South Korea and other
               foreign locations, as well as the fact that, more recently, Mr. Yang had asked
               Mr. Kim to view products in the U.S., inspect them and pay for them.

4/7 Tr. at 35. Special Agent Hamako stated that although he knew Yang was incarcerated, he

“wasn’t sure if Mr. Kim was in contact with other individuals who might be seeking to illegally

procure U.S. goods,” and that his goal was to ascertain whether Kim had other customers. 4/7 Tr.

at 35–36. Under questioning by the prosecutor at the hearing, the agent agreed that he also thought

it was reasonable to believe that records of the 2008 transactions, including emails, could still be

saved on the computer. 4/7 Tr. at 38–39.

       Special Agent Hamako said he intended to conduct a border search of Kim as he departed

the country rather than as he entered the country,

               because if I believed at that time that he was traveling to the U.S. and might
               be conducting criminal activity while he was in the U.S., such as procuring
               products or attempting to set up subsequent deals, I would want to capture
               that information after he had done so, rather than before he had conducted
               any such activity. So, conducting a border search on the inbound side could
               cause him to decide not to conduct whatever activities or operations he
               might have been planning. Whereas, conducting the border search as he
               was leaving, in our view, would be more likely to obtain evidence of any
               criminal activity he had conducted during his trip.

                                                  8
4/7 Tr. at 34–35. He added that based on Yang’s statements and Karham’s general business

activities, he was “concerned that [Kim] could be involved in further activity in the [S]tates

regarding illegal exports.” 4/7 Tr. at 39. But he testified that he did not know at the time – and he

does not know now – what Kim did while he was in the United States between November 25 and

December 5, 2012, and that he did not conduct any surveillance or take any steps to find out before

carrying out his plan to obtain the laptop. 4/7 Tr. at 81.

       On December 5, 2012, working with a LAX duty agent and Customs and Border Protection

officers, Special Agent Hamako conducted the planned search of Kim as he departed the country.

4/7 Tr. at 40. First, he searched Kim’s checked luggage, which was located behind the check-in

counter with Korean Airlines. Id. He found no accelerometers or contraband. 4/7 Tr. at 82–83.

He did find a small plastic bag containing plastic o-rings, some unidentified industrial metal

objects, and some product brochures. 4/7 Tr. at 40–41, 90. The agent was not able to identify the

applications of these particular o-rings because he was not an aircraft parts expert, but said that he

knew “in other cases the Iranian Air Force had been seeking o-rings for their aircraft,” and so he

thought that these small plastic ones “could be” on the munitions list, and he kept them to

determine their application. 4/7 Tr. at 41–42. He later spoke with the manufacturer, and

determined “it was very unlikely that they were export controlled items,” and shipped them back

to Kim. 4/7 Tr. at 43. Special Agent Hamako also testified that the metal objects in the luggage

did not appear to have any moving parts or sensors or electronics and may have been a tripod, and

the product brochures “didn’t seem to be pertinent at the time.” 4/7 Tr. at 87–88, 90. So he did

not retain either the metal objects or the brochures and did not photograph or document what they

were. 4/7 Tr. at 88–89.




                                                  9
       Next, Special Agent Hamako stopped Kim on the jetway between the gate and the airplane

as Kim was boarding his flight. 4/7 Tr. at 40, 43. He identified himself and asked Kim if he had

any electronics, to which Kim responded that he had a laptop. 4/7 Tr. at 44. Special Agent Hamako

told Kim that he would be detaining the laptop pursuant to a border search and that he would return

it once the search was complete. Id. He also told Kim that he would be detaining the o-rings until

their export control status was determined. Id. Special Agent Hamako testified that he did not

have an interpreter during the encounter with Kim because he did not anticipate that he was likely

to say anything incriminating. 4/7 Tr. at 94.

               My goal at that time wasn’t to conduct an in-depth interview or subject
               interview of Mr. Kim, reading him his rights or anything like that, since my
               main goal was to obtain his electronics and then let him go on his way.

4/7 Tr. at 95. This is precisely what took place, and Kim boarded his flight. 4/7 Tr. at 45.

       Special Agent Hamako did not turn the laptop on or review its contents in any way during

his search of Kim at LAX. 4/7 Tr. at 45. He explained that “it would be inappropriate to search

his laptop without – without an individual who’s qualified to preserve the contents of the laptop.

Because if I were to turn on the laptop and just begin searching it there, that would be altering the

information on the laptop and could render any evidence I found on it tainted or otherwise

questionable, since I would be modifying the contents of the laptop by conducting searches on it.

And also, because based on the time available, it could have taken who knows how long.” 4/7 Tr.

at 45; see also 4/7 Tr. at 115 (stating that “conducting a live search on his computer would have

necessarily changed and altered the contents of the laptop, so I would not have conducted such a

search”). Special Agent Hamako testified, “[M]y main goal was to obtain any electronics that he

had on his person at that time.” 4/7 Tr. at 94.




                                                  10
        E.        The Search of Kim’s Computer

        On December 6, 2012, Special Agent Hamako submitted Kim’s laptop to Special Agent

David Marshall of the Homeland Security Investigation San Diego Computer Forensics Group.

Report of Investigation, No. 147, Dec. 11, 2012, Gov’t Ex. 5 (“Dec. 2012 ROI”) at 1, 3; Mots.

Hr’g Tr., April 8, 2015 (“4/8 Tr.”) at 7–8; 1 see also 4/7 Tr. at 99–100. Special Agent Hamako

“requested a border search of the laptop” from Special Agent Marshall. 4/8 Tr. at 8.

        To carry out Special Agent Hamako’s request, Special Agent Marshall removed the hard

drive from Kim’s laptop and created a forensic image, or a duplicate copy, of it. 4/8 Tr. at 8. To

do this, Special Agent Marshall connected a piece of hardware “about the size of a shoebox” to

the laptop hard drive: the hardware creates “an exact copy, reading every single bit, as we call it,

every single piece of data on the hard drive and making a copy of that for me to analyze later on.”

4/8 Tr. at 8–9.

        The imaged copy included all files from both the allocated and unallocated space on the

computer, which Special Agent Marshall explained as follows:

                  Allocated space, in general, means space in your hard drive where . . . files
                  are living, files that you see on your desktop, maybe a photo of a family
                  vacation or Word documents. Unallocated space refers to space that’s not
                  currently being used by – let’s say it’s Windows, by Windows for any files.
                  And when you delete a file, it goes into unallocated space. . . . [U]nallocated
                  space is space that’s not currently being used by the computer.

4/8 Tr. at 9.

        Special Agent Marshall placed the hard drive back into Kim’s laptop and returned the

laptop to Special Agent Hamako on December 7, 2012. 4/8 Tr. at 8. 2



1      Agent Marshall appeared by telephone with the consent of defendants for the April 8, 2015
hearing. 4/8 Tr. at 4.

2       The laptop was returned to Kim around December 12, 2012. SW Aff. ¶ 17.
                                                    11
       Also on December 7, 2012, Special Agent Marshall employed a software program called

EnCase to export files from Kim’s computer. 4/8 Tr. at 10; see also Dec. 2012 ROI at 4 (stating

that he used commercially available email analysis software to export files). He used EnCase to

export six Microsoft Outlook email containers, 3 8,184 Microsoft Excel spreadsheets, 11,315

Adobe PDF files, 2,062 Microsoft Word files, and 879 Microsoft PowerPoint files from the image.

Dec. 2012 ROI at 4; see also 4/8 Tr. at 11.

       Special Agent Marshall used another program, Intella, to process the files. 4/8 Tr. at 10;

see also Dec. 2012 ROI at 4. He testified that Intella is a powerful piece of software with a variety

of capabilities, including the ability to search the text of emails that are not otherwise searchable.

4/8 Tr. at 31. It also indexes and categorizes emails:

               [A]n e-mail container can contain thousands of e-mails. So Intella will go
               through and open up the e-mail, and what we call index and categorize the
               e-mail. So it looks at all the e-mail information, the to and the from, the
               dates, things like that, the attachments, and it processes those and
               categorizes all that information so that the user can then go in and see all
               the e-mails from a certain person, you know, or to a certain person or on a
               date.

4/8 Tr. at 31–32. And according to Special Agent Hamako, it would have been “impractical” to

use the search function in Outlook instead; given the investigators’ search methodologies, “Intella

is more efficient.” 4/7 Tr. at 105.

       These files were copied to a “case agent review” laptop for Special Agent Hamako to

review. 4/8 Tr. at 11. When Special Agent Marshall saw the number of files on the laptop, he




3       Agent Marshall explained that “e-mail messages are stored in what we call a container. So
if you have 5,000 e-mails, rather than having 5,000 files on your computer, you’ll have one large
file where all the e-mails are stored inside of that.” 4/8 Tr. at 10.
                                                 12
asked Special Agent Hamako to give him a keyword list to use to “filter down the amount of

information for him to review.” 4/8 Tr. at 11.

       On December 10, 2012, Special Agent Hamako gave Special Agent Marshall a list of

twenty-two keywords: QA-2000, QA-3000, G-2000, 7270A, accelerometers, gyroscope, angular,

sensor, Honeywell, Endevco, Northrop, Grumman, ITAR, sensitive, export, shipment, military,

aircraft, missile, satellite, ballistic, and nuclear. 4/8 Tr. at 12–13. Using these keywords to screen

the files on Kim’s laptop, Special Agent Marshall found approximately 5,900 files that had a

keyword match. 4/8 Tr. at 13. He burned the files to a DVD and gave the DVD to Special Agent

Hamako, along with the case agent review laptop. Dec. 2012 ROI at 4; 4/8 Tr. at 13.

       The next day, on December 11, 2012, Special Agent Marshall exported all of the picture

files, which can include images of documents and not simply photographs, that were located in the

allocated space of the computer – approximately 24,900 .jpg files. 4/8 Tr. at 13–14; Dec. 2012

ROI at 4. He copied all of those onto another DVD and gave the DVD to Special Agent Hamako.

4/8 Tr. at 13–14; Dec. 2012 ROI at 4.

       Special Agent Hamako then spent “[s]everal days” reviewing the files obtained from Kim’s

computer, conducting keyword searches of the emails and documents. 4/7 Tr. at 47; Search

Warrant ¶ 17 (stating that Special Agent Hamako received the emails on December 10, 2012 and

reviewed them until December 19, 2012). He found emails consistent with the 2008 transaction

Yang described during the interview, and those form the basis for the criminal charges in this case.

4/7 Tr. at 47–48.

       F.      The Search Warrant

       On January 13, 2013, Special Agent Hamako filed an application for a search warrant in

the U.S. District Court for the Southern District of California. Search Warrant. He provided an



                                                 13
affidavit with the application, in which he stated his belief that there was “probable cause to believe

that evidence relating to violations” of the ACEA, IEEPA, the Iranian Transactions Regulations,

and other statutes would be contained in the files on Kim’s laptop. SW Aff. ¶ 10. The affidavit

states that the laptop was detained during a border search, that the government had imaged the

laptop, and that Special Agent Hamako reviewed emails obtained from the laptop for ten days.

SW Aff. ¶¶ 16–17. The affidavit then describes the contents of emails between Kim and Yang

from December 2007 through April 2008, showing that Kim helped Yang purchase six

accelerometers without the required export control license, and that the items were to be forwarded

to Iran. SW Aff. ¶¶ 18–40.

       The application stated further that, “[w]ith the approval of the Court in signing this warrant,

agents executing this search warrant will employ the following procedures” to search Kim’s

computer: forensic imaging, which the affidavit acknowledged had already occurred, and

identification and extraction of relevant data. SW Aff. ¶¶ 43–50. Special Agent Hamako

explained:

               Analysis of the data following the creation of the forensic image can be a
               highly technical process requiring specific expertise, equipment and
               software. There are literally thousands of different hardware items and
               software programs, and different versions of the same program, that can
               be commercially purchased, installed and custom-configured on a user’s
               computer system.
                                             *      *       *
               Analyzing the contents of a computer or other electronic storage device,
               even without significant technical challenges, can be very challenging.
               Searching by keywords, for example, often yields many thousands of
               hits . . . . Merely finding a relevant hit does not end the review process.
               The computer may have stored information about the data at issue: who
               created it, when and how it was created or downloaded or copied, when
               was it last accessed, when was it last modified, when was it last printed
               and when it was deleted. . . . Moreover, certain file formats do not lend




                                                  14
                themselves to keyword searches. . . . Many common electronic mail,
                database and spreadsheet applications do not store data as searchable text.

SW Aff. ¶¶ 45–46.

         According to the agent’s affidavit, the “mind-boggling” amount of data stored on

computers makes analyzing the data “increasingly time-consuming.” SW Aff. ¶ 48. Therefore,

Special Agent Hamako predicted that “[t]he identification and extraction process . . . may take

weeks or months.” SW Aff. ¶ 49. He also averred that the government “has not attempted to

obtain this data by other means, except 1) through border search authority . . . and 2) some email

communications between Kim and Yang . . . previously obtained pursuant to court authorized

search warrants of Yang’s email accounts.” SW Aff. ¶ 52.

         On January 16, 2013, the U.S. District Court for the Southern District of California signed

the warrant. Search Warrant.

         But Special Agent Hamako and Special Agent Marshall each testified that after the search

warrant was obtained, no further searches or analyses were undertaken. 4/7 Tr. at 51 (“THE

COURT: Was there some new, different program that was applied after you got the warrant that

did something more to the computer, or is it just a matter that you actually seized the e-mails?

[Special Agent Hamako]: That’s correct, Your Honor. We didn’t use any different programs after

obtaining the search warrant.”); 4/8 Tr. at 23 (“THE COURT: Did you do anything to – either the

complete image that you had created or the case agent’s laptop, did you do any further searching or

application of any programs after the search warrant was obtained? [Special Agent Marshall]:

No.”).

                                            ANALYSIS

         The government argues first and foremost that a laptop is nothing more than a sort of

container, and that the agents had full authority to scour its contents without the need for a warrant

                                                 15
or a showing of any particular level of suspicion simply because the search was initiated at the

border. Gov’t Opp. at 6, citing, inter alia, United States v. Ramsey, 431 U.S. 606 (1977), and

19 U.S.C. § 1581. 4 But the government also suggests that a search which took place at LAX,

involving a passenger traveling to and from California, should be assessed utilizing the Ninth

Circuit precedent set forth in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). 4/8 Tr. at

86; Gov’t Opp. at 10, n.9, 11 n.11.

       In Cotterman, the Ninth Circuit announced that reasonable suspicion was required before

investigators could undertake the forensic examination of a computer hard drive as part of a search

that began as a cursory review at the border. 709 F.3d at 957. In this case, the government argues

both that no suspicion was necessary since this was an ordinary, reasonable border search that can

be distinguished from the forensic examination that took place in Cotterman, and also that the

necessary suspicion was present. Gov’t Opp. at 10–14.




4      This provision states:

               Any officer of the customs may at any time go on board of any vessel or
               vehicle at any place in the United States or within the customs waters or, as
               he may be authorized, within a customs-enforcement area established under
               the Anti-Smuggling Act, or at any other authorized place, without as well
               as within his district, and examine the manifest and other documents and
               papers and examine, inspect, and search the vessel or vehicle and every part
               thereof and any person, trunk, package, or cargo on board, and to this end
               may hail and stop such vessel or vehicle, and use all necessary force to
               compel compliance.

19 U.S.C. § 1581(a) (internal citation omitted).


                                                   16
       Neither the Supreme Court nor the D.C. Circuit has weighed in on this issue, so there is no

binding precedent to be applied by this Court. 5 In 2014, a District Court in Maryland also

concluded that reasonable suspicion was needed to justify a forensic search of a defendant’s

electronic data storage devices. United States v. Saboonchi, 990 F. Supp. 2d 536, 539 (D. Md.

2014). And later that year, another court in this District was asked to apply the Cotterman rule to

a search of a laptop seized from a passenger flying into LAX, but in that case, the court determined

that it was not necessary to reach the constitutional question of whether reasonable suspicion was

required because it found that such suspicion was present in any event. United States v.

Hassanshahi, No. 13-0274 (RC), 2014 WL 6735479, *12 (D.D.C. 2014). In an effort to follow

that sensible approach, this Court took up the reasonable suspicion question first.

I.     Was there reasonable suspicion to support the search of Kim’s laptop?

       The Supreme Court has defined reasonable suspicion as “a particularized and objective

basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez,

449 U.S. 411, 417–18 (1981). The standard is met when a law enforcement officer can point to

“specific and articulable facts,” which, when considered together with the rational inferences that

can be drawn from those facts, indicate that criminal activity “may be afoot.” Terry v. Ohio, 392

U.S. 1, 21, 30 (1968). As the government has pointed out in this case, a court’s determination of

whether the officer had reasonable suspicion must be based upon the totality of the circumstances.

See United States v. Arvizu, 534 U.S. 266, 273 (2002); see also Cortez, 449 U.S. at 418


5       The Fourth Circuit has found that a laptop being transported by a returning traveler at the
port of entry fell well within the definition of the term “cargo” in 19 U.S.C. § 1581(a), and it upheld
the inspection of a laptop in that case. See United States v. Ickes, 393 F.3d 501 (4th Cir. 2005).
But that opinion provides little guidance here because the constitutional challenge to the search
was based on First Amendment grounds, and the search was initiated by agents at the border after
they had already discovered child pornography in the defendant’s possession and they were
notified of an outstanding warrant for his arrest. Id. at 507.

                                                  17
(recognizing that law enforcement agents will draw upon their training and experience to piece

together subtle clues that may seem innocent to others); United States v. Tiong, 224 F.3d 1136,

1140 (9th Cir. 2000).

       But what is it that the officer must reasonably suspect? Neither party focused in on that

issue, but a review of the cases decided in the wake of Terry makes it clear that the reasonable

suspicion standard relates to ongoing or imminent crime. See Cortez, 449 U.S. at 417 (“An

investigatory stop must be justified by some objective manifestation that the person stopped is, or

is about to be, engaged in criminal activity.”); United States v. Edmonds, 240 F.3d 55, 59 (D.C.

Cir. 2001) (“[T]he issue is whether a reasonably prudent man in the circumstances would be

warranted in his belief that the suspect is breaking, or is about to break, the law.”) (citation and

internal quotation marks omitted). Therefore, if this Court were to determine, after considering

the totality of the circumstances, that a reasonably prudent officer would have been justified in his

belief that Kim was engaged in ongoing criminal activity at the time he was stopped at LAX, then

the search would have been lawful under the Cotterman standard. And then, the Court could adopt

the approach taken by the District Court in Hassanshahi and find the constitutional question of

whether the search of the computer required reasonable suspicion to be moot.

       In this case, though, the Court is troubled by the lack of particularized grounds to believe

that this defendant was engaged in criminal activity at the time he was exiting the United States.

First of all, there is no question that the decision to conduct the search was not made on that basis:

Special Agent Hamako candidly testified that he made the decision to obtain the laptop and search

it for evidence of the alleged conspiracy with Yang based upon his understanding that such a search

required no level of suspicion at all. 4/7 Tr. at 34. He testified that once he had information from

Yang that defendant Kim had been his source in 2008, he decided to conduct what he termed a



                                                 18
“border search” the next time Kim came to the United States for the purpose of obtaining the

laptop. 4/7 Tr. at 33–34, 94. And he made that decision before he knew when Kim would be

travelling to the United States, whether he would be travelling, or why, and in the absence of any

information whatsoever about what Kim would or did do while he was in the country. 4/7 Tr. at

81, 33. 6 Even after the agent had been notified that Kim was on his way, he took no steps to

monitor Kim’s activities in any way while he was in the United States. 4/7 Tr. at 81.

       Notwithstanding these undisputed facts, the government takes the position that the agent

had reasonable suspicion to search the laptop under the Terry standard adopted in Cotterman based

upon the totality of the circumstances. It argued in its opposition to the motion to suppress,

“Yang’s admission that he previously conspired with Kim . . . created reasonable suspicion that

Kim had been, and perhaps still was, involved in illegal activity.” Opp. at 12. And, “SA Hamako

had reason to suspect that Kim would be crossing the border with a laptop that still contained

evidence of his earlier criminal conspiracy with Yang, as well as any recent illegal activities.”

Gov’t Opp. at 14.

       But the government’s use of such language as “perhaps” and “any” was not at all

reassuring, as it served to highlight how thin the showing is in this case. And the agent’s testimony

confirmed that gathering evidence of a completed crime was the central motivation here. See 4/7

Tr. at 95 (“[M]y main goal was to obtain his electronics and then let him go on his way.”).



6        See also 4/7 Tr. at 110 (“THE COURT: . . . Basically, the government’s opposition in this
case . . . says: Based upon the information Yang provided about Kim after Yang’s arrest, as well
as information about Kim obtained during the investigation of Yang, Homeland Security
Investigations Special Agent Hamako decided to conduct a border search of Kim when he returned
to the United States. So it’s fair to say that before you knew whether or when Mr. Kim was coming
to the United States, you had already decided that if and when he came, you wanted to do a border
search, correct? [SPECIAL AGENT HAMAKO]: That’s correct, Your Honor. THE COURT:
And did you decide then that the border search would include doing a border search of his laptop?
[SPECIAL AGENT HAMAKO]: Yes, Your Honor.”).
                                                 19
       The government points out that the subjective intent of the agent is irrelevant. Gov’t Opp.

at 12 (stating that “only a ‘minimal level of objective justification’” is required), quoting

Hassanshahi, 2014 WL 6735479, at *16. And at the hearing on the motion, it posited that there

was reasonable suspicion to support the search based upon the following circumstances: the pre-

existing ongoing investigation into Kim’s involvement in Yang’s 2008 transaction with Iran; the

fact that Kim’s name came up in connection with the more recent attempt to engage Yang in an

undercover transaction; the fact that Kim did travel to the United States at the time Yang said he

would be traveling; the business relationship between Kim and Yang; and the discovery of the

o-rings. 4/8 Tr. at 77–78; Gov’t Opp. at 12–14.

       But even if one credits Special Agent Hamako’s testimony that Yang told him Kim knew

that the items shipped in 2008 were bound for Iran, see 4/7 Tr. at 10–11 – despite the agent’s

failure to mention that key detail in either his contemporaneous report or the affidavit he submitted

in support of the search warrant, see Nov. 2012 ROI; SW Aff. – and even if one credits Yang’s

account of the previous transaction, evidence of prior criminal conduct alone is not sufficient to

give rise to reasonable suspicion. Hassanshahi, 2014 WL 6735479, at *14, citing United States v.

Johnson, 482 Fed. App’x 137, 148 (6th Cir. 2012); United States v. Walden, 146 F.3d 487, 490

(7th Cir. 1998). This is particularly true under the circumstances of this case, where the only

evidence of more recent activity was Yang’s inquiry to Kim on behalf of the undercover officer,

which did not result in any action on Kim’s part. As of December 5, 2012, all that Special Agent

Hamako knew about ongoing activity was that Yang had contacted Kim and the approach had

quickly come to a dead end, that Yang was under arrest and no longer conspiring with anyone, and

that the search of Kim’s luggage revealed no accelerometers or obviously controlled items.




                                                 20
       The government points to Kim’s previous travel and the fact that exports to Yang and

others were a regular part of his business, but this is the sort of evidence the Supreme Court has

cautioned against according much weight in the reasonable suspicion analysis because it

“describe[s] a very large category of presumably innocent travelers.” Reid v. Georgia, 448 U.S.

438, 441 (1980).

       Further, it is difficult to find that the o-rings had anything other than marginal importance.

The testimony was that they were small and plastic, and it was not obvious to an agent who was

well trained in the contents of the munitions list that they were listed at all. 4/7 Tr. at 41, 83–86.

Indeed, they were of so little value to his investigation that the agent did not retain them,

photograph them, or even describe them in any report. 4/7 Tr. at 86–87. According to Special

Agent Hamako, that was because his “main goal was to obtain [Kim’s] electronics and then let

him go on his way.” 4/7 Tr. at 95. And the agent testified that that the decision to search the

laptop well preceded the discovery of the o-rings in any event. 4/7 Tr. at 110–12.

       The agent’s answers to questions posing obvious propositions that do not depend on

sophisticated investigatory experience, see 4/7 Tr. at 48 (“Q. . . . [I]f you knew that Mr. Yang and

Mr. Kim had conspired to export the accelerometers Mr. Yang told you about, did you have reason

to suspect Mr. Kim could have had other people he was working with? A. That’s correct. It’s

common in our investigations that individuals will have different coconspirators and customers for

goods, . . . .”), did little to lift the evidence out of the realm of hunch or speculation, particularly

given the fact that the one known prior alleged conspiracy did not involve entry into or exit from

the United States at all. 4/7 Tr. at 10–11; see also id. at 53 (agent admitted on cross examination

that while it was a “possibility” that Kim had other co-conspirators, he had no evidence of any

other questionable transactions besides the one with Yang).



                                                  21
       Looking at all of the circumstances presented, then, while it is a close case, it seems clear

to the Court that the search of the laptop was predicated upon the agent’s expectation that the

computer would contain evidence of past criminal activity, but there was no objective

manifestation that Kim was or was “about to be, engaged in criminal activity” at that time. Cortez,

449 U.S. at 417; see also 4/7 Tr. at 32–33 (after the Yang debriefing, the agent arranged to be

notified of any planned travel by Kim so that he could take proactive steps such as surveillance or

a border search “to determine if he was engaged in any potential criminal activity while in the

United States”) (emphasis added). With respect to ongoing activity, the search was nothing more

than a fishing expedition to discover what Kim might have been up to. See also 4/7 Tr. at 35–36

(“Q [by AUSA]. Now, you knew that Mr. Yang was locked up and could not engage in activity

with Mr. Kim, correct? A. That’s correct. However, based on the fact that I wasn’t able to search

Mr. Kim’s e-mail, I wasn’t sure if Mr. Kim was in contact with other individuals . . . . So, at that

time I wasn’t sure if Mr. Yang was Mr. Kim’s only customer. Q. Were you intending to investigate

whether he had other customers? A. I was. That was a primary goal of our investigation.”) Indeed,

when Special Agent Hamako took the time to detail the evidence against Kim in the affidavit in

support of the search warrant, he did not include any facts or allegations related to anything that

was supposedly going on in December of 2012. He simply averred, “[a]fter his arrest, Yang stated

that he had previously purchased six Honeywell QA-2000 accelerometers from Kim.” See

SW Aff. ¶ 15. And therefore, this case is distinguishable from Cotterman and the decision from

this District in Hassanshahi.

       The court in Cotterman noted that the agents at the Mexican border made their initial

decision to search the defendant’s belongings on his way into the country after the Treasury

Enforcement Communication System (“TECS”) revealed that the defendant was a known sex



                                                22
offender. 709 F.3d at 957. Based on the TECS alert, the border agents believed that the defendant

had a prior conviction for child pornography, that he was possibly involved in child sex tourism,

and that he was arriving from a country associated with that activity. Id. at 957, 968–69. 7 The

agents’ review of Cotterman’s passport confirmed that he travelled frequently out of the country.

Id. at 968. The Immigration and Customs Enforcement (“ICE”) “field office specifically informed

[the border agent] that the alert was part of Operation Angel Watch, which targeted individuals

potentially involved in sex tourism and alerted officials to be on the lookout for laptops, cameras

and other paraphernalia of child pornography.” Id. at 969. A search of the Cottermans’ vehicle

produced two laptop computers and three digital cameras, and an initial inspection of the devices

on the scene revealed what appeared to be personal photos, as well as a set of password-protected

files on the laptop. Id. at 957–58.

       While neither the prior conviction nor the use of password-protected files alone would have

sufficed, the court concluded that “Cotterman’s TECS alert, prior child-related conviction,

frequent travels, crossing from a country known for sex tourism, and collection of electronic

equipment, plus the parameters of the Operation Angel Watch program, taken collectively, gave

rise to reasonable suspicion of criminal activity.” Id. at 969. The court added that where there are

other indicia of criminal activity, the password protection of individual files – as opposed to the

commonplace use of a password to protect an entire device – could be considered as part of the

totality of the circumstances, but only in a situation, such as a child pornography case, where the

encryption or protection of files would have some relationship to the suspected criminal activity.



7       The dissent in Cotterman criticized the majority’s decision to rely in part on the fact that
the defendant was returning from Mexico based on its vague association with “sex tourism,”
finding that Mexico is a popular travel destination for innocent reasons, including its “beaches,
culture and weather, and not for its sex tourism.” 709 F.3d at 992 (Smith, J., dissenting).

                                                23
Id. at 969. Given the combination of the TECS hit and the discovery of the inaccessible files, and

crediting the agents’ observations and experience, the Ninth Circuit found that “[t]he border agents

‘certainly had more than an inchoate and unparticularized suspicion or hunch’ of criminal activity

to support their decision to more carefully search for evidence of child pornography.” Id. at 970,

quoting United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985). 8

       Here there was nothing about Kim’s particular travel plans that would arouse suspicion; he

was returning to his home in Korea and he was known to have business operations within the

United States. And, the agent did not even open the laptop – which did not turn out to contain

password protected files in any event – on the scene. So while in Cotterman, the court characterized

the forensic search as one that grew out of observations made during the initial cursory

examination at the border, the search here was not prompted, even in part, by anything that raised

the agent’s level of concern upon a first glance at the device at the border. Compare Cotterman,

709 F.3d at 969–70 (pointing to the password-protected files on Cotterman’s computer as a

circumstance justifying the scope of the search).

       In United States v. Hassanshahi, the court found that there was reasonable suspicion that

the defendant was engaged in efforts to violate the trade embargo with Iran, which supported the

decision to conduct a forensic search of his laptop upon his return to the United States in January

2012 after travel to Iran. Hassanshahi, 2014 WL 6735479, at *11–18. The case began with an

anonymous tip received by Homeland Security Investigations from a source who had been


8       The agents retained the electronic devices, and the next day, they were delivered to an ICE
Computer Forensic Examiner who made copies of the hard drives. 709 F.3d at 958. On the
following day, aided by the use of forensic software, the agent found seventy-five images of child
pornography within the unallocated space of one of the laptops. Id. A further search of the
password-protected files revealed an extensive collection of additional images of child
pornography, including images of the defendant himself repeatedly molesting a child over a two-
to-three-year period. Id. at 959.

                                                24
contacted by an Iranian seeking assistance in procuring parts for an Iranian power project. Id. at

*1. Further investigation (utilizing information that was ultimately suppressed and therefore not

included in the reasonable suspicion calculus) led to Hassanshahi.          Id. at *1–2, 13.     The

investigating agent discovered information in TECS about a federal criminal investigation in 2003

concerning Hassanshahi’s alleged participation in a conspiracy to establish an American company

to partner with a Chinese company to build a computer manufacturing facility in Iran. Id. at *13.

While no criminal charges were filed at that time, the underlying facts were later admitted in a

civil action brought by Hassanshahi himself against the Chinese entity. Id. at 13, n.12. The

information concerning the prior transaction, while not sufficient on its own, was found to

contribute to the reasonable suspicion calculus, and in the court’s view, it “also negatively colored

the perception of any future travel by [Hassanshahi] to that specific country,” transforming what

might otherwise be general information about travel outside the United States into a “particularized

and objective fact potentially indicative of ongoing criminal activity.” Id. at *14.

       The TECS information about Hassanshahi revealed additional travel involving Iran: in

2006, twice in 2008, once in 2010, in May 2011, and in either late 2011 or early 2012, all of which

supported the notion that his Iranian business dealings were ongoing. Id. In addition, the fact that

the defendant’s email account was accessed twenty-four times from an Iranian IP address between

December 8, 2011 and December 15, 2011, and the evidence that around the time the defendant

traveled to Iran, he made contact with one Iranian telephone number and received a missed call

from another, reinforced the conclusion that Hassanshahi was engaged in business activity during

his recent trip. Id. at *15. Finally, the court took note of the fact that Hassanshahi was travelling

with multiple electronic devices and data storage accessories, including a laptop computer,

multimedia cards, thumb drives, a camcorder, SIM cards, and a cell phone. Id. It observed,



                                                 25
“[t]hough it generally is unremarkable nowadays for a person traveling abroad to bring a computer,

camcorder, or cell phone with them, Hassanshahi’s possession of multiple data storage devices

appears to be inconsistent with just personal use while traveling,” and it found that the volume of

equipment supported the inference that the defendant had traveled to Iran to continue the same

sorts of business activity in which he had been engaged in the past. Id. 9

       Here, the fact that Kim’s name had been provided in connection with a prior alleged export

violation did not add shades of a more sinister meaning to what could have been a routine trip to

the United States, because nothing about the one completed prior incident even involved a trip to

the United States. Cf. id. at *17 (“Hassanshahi traveled on multiple occasions to the specific

country at issue in the 2003 criminal investigation, thus making his travel far more probative of

criminal conduct.”). Also, in contrast to the information about Hassanshahi’s phone calls and

emails in Iran, the record here was devoid of any information revealing where Kim had gone during

his trip or who he contacted during his travels. There was nothing about the fact that Kim was

travelling with an ordinary laptop that can be compared to the array of devices discovered in

Hassanshai. And finally, the court in Hassanshahi made a point of “‘considering the totality of

the circumstances as the officer on the scene experienced them,’” giving due credit to that officer’s

ability to draw inferences and deductions based upon the facts before him at the time. Id. at *16,

quoting United States v. Edmonds, 240 F.3d 55, 59–60 (D.C. Cir. 2001). Here, while the o-rings

may be a circumstance this Court can consider, the fact is that Special Agent Hamako was




9      Given the prevalence of laptops, tablets, cell phones, e-readers, and digital cameras, carried
in combination by travelers ranging from elementary school students to senior citizens, and the
availability of myriad electronic applications for news, sports, music, games, fitness, banking,
personal organization, and travel, this Court is not necessarily persuaded that being equipped with
multiple electronic devices is a strong indicator of business activity. But it notes that this factor
was absent in this case in any event.
                                                 26
implementing a decision he had previously made elsewhere, and his collection of the laptop was

not informed in any way by his observations on the scene, filtered through his training and

experience or otherwise. 10

       Since there was little or nothing to indicate that a crime was “afoot” in this case, the Court

is of the view that it cannot rely upon the approach utilized in Hassanshahi, and that it must go on

to consider the constitutional question of whether the nature, scope, and duration of the search

were reasonable under the Fourth Amendment. In the end, the reasonable suspicion analysis may

be largely beside the point because what took place here cannot be fairly compared to a Terry stop.

II.    Does the search pass muster under the Fourth Amendment?

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

its zenith at the international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004).

Notwithstanding the broad scope of the government’s authority at the border, the Supreme Court

has suggested that even this power to search may be bounded by limits derived from the Fourth

Amendment, particularly when the search cannot be characterized as “routine.” See Montoya de

Hernandez, 473 U.S. at 540 (observing that the Court has “not previously decided what level of


10      In United States v. Saboonchi, 990 F. Supp. 2d. 536, the court devoted only one page of its
lengthy decision holding that reasonable suspicion was needed to its finding that the standard had
been satisfied. Id. at 571. The opinion recounts that when Saboonchi, a dual citizen of the United
States and Iran, arrived at the border, he was already the subject of ongoing investigations into
export violations, and that evidence had already been gathered in response to several subpoenas.
Id. There was information gleaned from both the subpoenas and witness interviews that the
defendant had purchased two cyclone separators after representing that they would be used
domestically, and that he had shipped them overseas, understating their value in a manner that
suggested to the agent that he was seeking to avoid scrutiny. Id. at 542–43, 571. Also, it had
already been determined that the recipient of the shipment was linked to a company in Iran. Id. at
571. But while it is true that this case also involves an investigation into a completed export
violation, with little evidence that anything was ongoing at the border, the Saboonchi investigation
was much further along than Special Agent Hamako’s, which at that point consisted primarily of
Yang’s accusation. And the opinion, while it may be instructive on certain points, is not binding
on this Court in any event.

                                                27
suspicion would justify a seizure of an incoming traveler for purposes other than a routine border

search”); Flores-Montano, 541 U.S. at 152, 155–56 (discussing “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 searched,” as well as when searches of property

are ultimately “destructive”). While the Supreme Court has not provided much specific guidance

about what those limits might be, “reasonableness remains the touchstone for a warrantless

search.” Cotterman, 709 F.3d at 957; see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006).

          The few Supreme Court cases that explore the sorts of border searches that might require

some level of suspicion involved unique and extreme situations: a highly intrusive physical

examination of the defendant’s person, Montoya de Hernandez, 473 U.S. 531, and the complete

destruction of another defendant’s automobile gas tank, Flores-Montano, 541 U.S. 149, and they

do not deal directly with the world of electronic media. The government takes the position, then,

that the search of a laptop is the functional equivalent of the inspection of a piece of luggage or a

cargo container, and that therefore it was presumptively reasonable and subject to no limitation

under the border search doctrine. Gov’t Opp. at 6, 9. After all, the prosecution points out, the

experience was not physically invasive or embarrassing and not even destructive of the laptop

itself, which was returned to the defendant intact. Gov’t Opp. at 8–9.

          But neither of those precedents can be easily compared to this case, and given the vast

storage capacity of even the most basic laptops, and the capacity of computers to retain metadata

and even deleted material, one cannot treat an electronic storage device like a handbag simply

because you can put things in it and then carry it onto a plane. As the court observed in Cotterman:




                                                 28
               The amount of private information carried by international travelers was
               traditionally circumscribed by the size of the traveler’s luggage or
               automobile. This is no longer the case. Electronic devices are capable of
               storing warehouses full of information.

                                                *     * *
               Laptop computers, iPads and the like are simultaneously offices and
               personal diaries. They contain the most intimate details of our lives:
               financial records, confidential business documents, medical records and
               private emails.
                                                 * * *
               Electronic devices often retain sensitive and confidential information far
               beyond the point of erasure, notably in the form of browsing histories and
               records of deleted files. This quality makes it impractical, if not impossible,
               for individuals to make meaningful decisions regarding what digital content
               to expose to the scrutiny that accompanies international travel.

709 F.3d at 964–65. Judges across the country have strained to select artful metaphors to use when

comparing digital devices to containers ranging from slim leather valises to shipping containers,

but this Court will not engage in that semantic exercise because the fact is, the metaphors do not

fit. As the District Court in Maryland put it in Saboonchi, “a forensic search is sui generis”:

               I cannot help but find that even if a computer or cell phone is analogized to
               a closed container, a forensic search cannot be analogized to a conventional
               search of luggage or even of a person. A forensic search is far more invasive
               than any other property search that I have come across and, although it lacks
               the discomfort or embarrassment that accompanies a body-cavity search, it
               has the potential to be even more revealing.

               A conventional computer search allows Customs officers to choose, within
               the finite amount of time available to them while they detain the traveler, to
               decide where, within a veritable mountain of personal data, to focus their
               attention while searching for contraband, threats, or criminality. And at the
               end of a conventional search, as with the conventional search of a suitcase,
               a traveler regains custody of his possessions and information and proceeds
               about his business with a minimum of lingering inconvenience. A forensic
               search, on the other hand, allows a Customs officer to give uniquely probing
               review not only to the files on one’s computer, but also any files that ever
               may have been on that computer. And even after a traveler is cleared to
               enter the country, the search may continue for months or even years
               afterwards.

990 F. Supp. 2d at 568.

                                                 29
       But when faced with the task of applying eighteenth-century principles to this twenty-first-

century technology, the Ninth Circuit and the District Court in Maryland adopted slightly different

approaches. Cotterman concluded that a forensic search of an imaged computer was as invasive

of the defendant’s privacy as a strip search, 709 F.3d at 966, and it concluded that reasonable

suspicion was required before investigators could engage in that sort of examination. Id. at 962.

(“It is the comprehensive and intrusive nature of a forensic examination – not the location of the

examination – that is the key factor triggering the requirement of reasonable suspicion here . . . .

Agent Owen used computer forensic software to copy the hard drive and then analyze it in its

entirety, including data that ostensibly had been deleted.”). The court expressed “confidence in

the ability of law enforcement to distinguish a review of computer files from a forensic

examination,” noting that “it requires that officers made a commonsense differentiation between a

manual review of files on an electronic device and the application of computer software to analyze

a hard drive.” Id. at 967.

        The Saboonchi court took issue with the Ninth Circuit’s failure to define precisely what a

“forensic” search might be. See 990 F. Supp. 2d at 552–58. It attacked the question by

differentiating a “routine” border search from a non-routine border search and creating its own test

for distinguishing the “forensic” examination for which reasonable suspicion is required from a

“conventional” computer search. Id. at 560–69. 11 According to that opinion,

               [a] conventional search at the border of a computer or device may include a
               Customs officer booting it up and operating it to review its contents, and
               seemingly, also would allow (but is not necessarily limited to) reviewing a
               computer’s directory tree or using its search functions to seek out and view
               the contents of specific files or file types. . . . And, just as a luggage lock



11     Such an analysis may have been necessary in that case since the Saboonchi court was
otherwise constrained by the Fourth Circuit precedent in Ickes.


                                                 30
               does not render the contents of a suitcase immune from search, a password
               protected file is not unsearchable on that basis alone.

Id. at 560–61. By contrast, “[i]n a forensic search of electronic storage, a bitstream copy is created

and then is searched by an expert using highly specialized analytical software – often over the

course of several days, weeks, or months – to locate specific files or file types, recover hidden,

deleted, or encrypted data, and analyze the structure of files and of a drive.” Id. at 561.

       Which sort of search was conducted here? Another way to phrase the inquiry might be:

the Supreme Court has stated that “[r]outine searches of the persons and effects of entrants are not

subject to any requirement of reasonable suspicion, probable cause, or warrant,” Montoya de

Hernandez, 473 U.S. at 538, but was this search “routine”? 12

       The record reflects that the examination of Kim’s laptop fell somewhere on the spectrum

between the two poles described by other courts.

       Certainly no one simply turned it on and perused the files as might have been possible at

the border. By making an exact copy of the hard drive and retaining it so that it could be subjected

to a series of searches, using whatever software investigators deemed necessary, for a period of

unlimited duration, the investigators gave themselves the luxury of the one thing that is absolutely

not available on the jetway: time. This, in and of itself, was one of the key factors identified in




12      The First Circuit has proposed that the following non-exhaustive list of factors may be
relevant when determining whether a search can be characterized as routine: “(i) whether the
search results in the exposure of intimate body parts or requires the suspect to disrobe; (ii) whether
physical contact between Customs officials and the suspect occurs during the search; (iii) whether
force is used to effect the search; (iv) whether the type of search exposes the suspect to pain or
danger; (v) the overall manner in which the search is conducted; and (vi) whether the suspect’s
reasonable expectations of privacy, if any, are abrogated by the search.” United States v. Braks,
842 F.2d 509, 512 (1st Cir. 1988) (footnotes omitted).


                                                 31
Saboonchi as differentiating a routine border search from a non-routine border search. 990 F.

Supp. 2d. at 547.

       In addition, the search was facilitated by the application of additional forensic software that

was not already loaded onto the computer, 4/8 Tr. at 10, which was another factor in both

Saboonchi and Cotterman underlying the determination that reasonable suspicion was required.

990 F. Supp. 2d at 864–66; 709 F.3d at 962, 967.

        The Cotterman court placed some emphasis on the fact that the forensic examination there

enabled the agents to access even those files that have been deleted. 709 F.3d at 962, 965. And

Special Agent Marshall, who conducted the search, attempted to differentiate the search in this

case from that sort of “full” forensic examination, which is often called for in cases involving child

pornography. 4/8 Tr. at 15–16, 19–20. But the forensic specialist also acknowledged that the term

“forensic search” can describe a range of examinations and that the term has no specific definition.

4/8 Tr. at 25. In the Court’s view, the fact that the agents in this case did not search the unallocated

space for deleted material as they did in Cotterman is not dispositive. Once an entire hard drive

has been copied, the investigative imperatives of the case dictate the extent and nature of the

examination, and the fact is that here, the agents found what they were looking for sitting in the

computer’s allocated space and email containers, and they did not need to go further. But they had

created a copy of the unallocated space as well in the event a search for deleted matter turned out

to be indicated.

       The government tried to make the point that the use of the particular forensic search

programs here was not significant, since a person with unlimited time (and presumably, patience)

could use the search tools already offered on a Windows-based laptop and eventually find the

emails and documents that the agent found. 4/8 Tr. at 81. Neither side produced much in the way



                                                  32
of expert testimony or literature that would illuminate these issues, but Special Agent Hamako did

testify that the mere use of a password on the device or changed file extensions on individual

documents could inhibit such an effort. 4/7 Tr. at 45–47, and that Intella was more efficient than

Outlook. 4/7 Tr. at 105. He also explained that Intella allows agents to run keyword searches

through emails, tracks what searches have been conducted, and provides for tagging, marking, and

categorizing emails without modifying the content of the emails themselves. 4/7 Tr. at 50; see

also 4/8 Tr. at 31–32 (testimony from Special Agent Marshall explaining that Intella indexes and

categorizes the emails by information contained in them, such as sender, recipient, dates, and

attachments). More importantly, the agents’ testimony about how long it took them to do what

they did, even when they had the benefit of these additional programs, belies the notion that what

was done is comparable to what an agent could have accomplished if he had simply powered up

the computer then and there and stood around the airport for a while. See Saboonchi, 990 F. Supp.

2d at 561 (“It is the potentially limitless duration and scope of a forensic search of the imaged

contents of a digital device that distinguishes it from a conventional computer search.”). Similarly,

the volume of the material exported and presented to Special Agent Hamako – six Microsoft

Outlook email containers, each potentially containing thousands of emails, 8,184 Microsoft Excel

spreadsheets, 11,315 Adobe PDF files, 2,062 Microsoft Word documents, and 879 Microsoft

PowerPoint files, Dec. 2012 ROI at 4, from which 5,900 files were extracted using Special Agent

Hamako’s twenty-two keywords, plus approximately 24,000 .jpg files, 4/8 Tr. at 13–14 – is hardly

consistent with what the Cotterman and Saboonchi courts envisioned a “conventional” search to

be. Even after the hard drive had been copied and the agent would have had all the time he needed,

Special Agent Marshall was concerned that the material on the hard drive “would be a lot of data




                                                 33
to look through manually,” and he proposed narrowing the contents for Special Agent Hamako

using forensic software and keywords. 4/8 Tr. at 33.

       Still, the search here was something of a hybrid, and not quite the scouring that was

involved in Cotterman, so did it constitute a “forensic” search under either test? 13 Which test is

the appropriate formulation? Both sides steered the Court away from engaging in that sort of

academic analysis. 4/8 Tr. at 58–59; 90. While the parties did not agree on whether reasonable

suspicion was needed, they both urged the Court not to select one test over the other and not to

articulate yet another general rule for computer searches, and that is sound advice.

       In the end, the Court is not persuaded that it is necessary to develop law that does not exist

in this Circuit on the question of whether and when reasonable suspicion would be constitutionally

required, or to articulate a broad rule of general applicability to future searches of electronic media

when the technology is constantly changing and the parties have not provided much technical

guidance. Because while the courts in Ickes, Cotterman, and Saboonchi had little in the way of

Supreme Court precedent to guide their way, the Supreme Court has since issued its opinion in

Riley v. California, 134 S. Ct. 2473 (2014). And in Riley, the Court made it clear that the breadth

and volume of data stored on computers and other smart devices make today’s technology different

in ways that have serious implications for the Fourth Amendment analysis, and it demonstrated

how that analysis is supposed to proceed. 14 Id. at 2489–91. So it is not necessary to decide the


13      The government, which had not even planned to call the forensic specialist until the Court
indicated his testimony would be necessary, see 4/7 Tr. at 98, submitted that the search here did
not meet the Cotterman test for a “forensic” examination, but it was not prepared to articulate why.
4/8 Tr. at 81–82.

14      The fact that Riley involved a cellular telephone rather than a laptop is of little moment;
indeed, it was the fact that a cellular telephone is, for all intents and purposes, a small computer,
that led that Court to find that the usual rules governing a search incident to arrest should not apply.
134 S. Ct. at 2489.

                                                  34
constitutional question of what level of suspicion is required to support a forensic search of a

computer that began at the border, or what the determining features of a “forensic” search might

be.

        Riley presented the question of whether the police may search digital information on a cell

phone as part of a warrantless search incident to arrest. Id. at 2480. The starting point for the

answer was the Fourth Amendment, and the Court reaffirmed two core propositions: first, that

“[a]s the text makes clear, ‘the ultimate touchstone of the Fourth Amendment is reasonableness,’”

Id. at 2482, quoting Brigham City, 547 U.S. at 403; and second, “that ‘[w]here a search is

undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . .

reasonableness generally requires the obtaining of a judicial warrant.’” Id., quoting Vernonia

School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). The Court went on to reiterate that “[i]n the

absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant

requirement,” and it acknowledged that a search of the person of the accused incident to arrest is

such a well-recognized exception. Id.

        The Court then reviewed its precedents concerning the lawful scope of a warrantless search

of the property found on a suspect. Id. at 2483–84. In Chimel v. California, 395 U.S. 752 (1969),

the Court announced that it would be reasonable for an arresting officer to search for any weapons

that might endanger the officer’s safety or be used to resist arrest or effect an escape, and that it

would also be reasonable to search for and seize evidence that might otherwise be concealed or

destroyed. Riley, 134 S. Ct. at 2483, citing Chimel, 395 U.S. at 762–63. In Robinson v. United

States, 414 U.S. 218 (1973), the Court announced that since an arrest based upon probable cause

was itself a lawful intrusion under the Fourth Amendment, no further justification or showing of

any actual threat to the arresting officer was needed for the officer to extend the search to



                                                  35
encompass property – in that case, a crumpled cigarette package – found on the arrestee’s person.

Riley, 134 S. Ct. at 2483–84, citing Robinson, 414 U.S. at 2034.

       But the availability of an exception alone was not enough to end the inquiry in Riley, and

ultimately, the Court rejected a “mechanical application” of Robinson.

               [W]hile Robinson’s categorical rule strikes the appropriate balance in the
               context of physical objects, neither of its rationales has much force with
               respect to digital content on cell phones. On the government interest side,
               Robinson concluded that the two risks identified in Chimel – harm to
               officers and destruction of evidence – are present in all custodial arrests.
               There are no comparable risks when the search is of digital data. In
               addition, Robinson regarded any privacy interests retained by an individual
               after arrest as significantly diminished by the fact of the arrest itself. Cell
               phones, however, place vast quantities of personal information literally in
               the hands of individuals. A search of the information on a cell phone bears
               little resemblance to the type of brief physical search considered in
               Robinson. We therefore decline to extend Robinson to searches of data on
               cell phones . . . .

Id. at 2484–85. 15

       Thus, it appears to this Court that the analysis of whether the search of Kim’s laptop was

reasonable under the Fourth Amendment does not simply end with the invocation of a statute or

the well-recognized border exception, as broad as it may be, and it does not turn on the application

of an undefined term like “forensic.” Instead, following the approach utilized in Riley, the Court

must proceed “‘by assessing, on the one hand, the degree to which [the search] intrudes upon an

individual’s privacy, and, on the other, the degree to which it is needed for the promotion of



15      The level of concern expressed by the Supreme Court regarding the volume of personal
data saved on an electronic device leads the Court to conclude that the decision in House v.
Napolitano, 2012 WL 1038816 (D. Mass. 2012), which was decided before Riley and is not
binding in any event, is not instructive here. In that case, the District Court found that “the search
of one’s personal information on a laptop computer, a container that stores information, even
personal information, does not invade one’s dignity and privacy in the same way as an involuntary
x-ray, body cavity, or strip search of a person’s body or the type of search that has been held to be
non-routine and require the government to assert some level of suspicion.” Id. at *7.


                                                 36
legitimate governmental interests.’” Riley, 134 S. Ct. at 2484, quoting Wyoming v. Houghton, 526

U.S. 295, 300 (1999). As part of that exercise, the Court should, as the Supreme Court did,

consider whether the application of the recognized warrant exception to this particular category of

personal property would “‘untether the rule from the justifications’” underlying the exception. Id.

at 2485, quoting Arizona v. Gant, 556 U.S. 332, 343 (2009). While Riley did not have any reason

to catalogue the interests underlying the government’s authority to search at the border, the opinion

did strongly indicate that a digital data storage device cannot fairly be compared to an ordinary

container when evaluating the privacy concerns involved. Id. at 2491.

        So what are the justifications underlying the exception to the warrant requirement that

pertain at the border? At the outset, it is important to note that we are not dealing with an exception

to the Fourth Amendment reasonableness requirement – only an exception to the warrant

requirement. See Ramsey, 431 U.S. at 621. And the fact that the Supreme Court has specifically

likened the border search warrant exception to the search incident to arrest exception reinforces

the Court’s view that an analysis similar to the one in Riley should be undertaken here. Id. (“[The

border search exception] is a longstanding, historically recognized exception to the Fourth

Amendment’s general principle that a warrant be obtained, and in this respect, is like the similar

‘search incident to lawful arrest’ exception . . . .”).

        The government’s power at the border arises out of the sovereign’s right and need to protect

its territorial integrity and national security. “[S]earches made at the border, pursuant to the long-

standing right of the sovereign to protect itself by stopping and examining persons crossing into

this country, are reasonable simply by virtue of the fact that they occur at the border . . . . ” Ramsey

at 616. While there is authority that states that the government’s broad authority at the border

extends to those exiting the country as well as to those coming in, United States v. Seljan, 547 F.3d



                                                   37
993, 999 (9th Cir. 2008), quoting Ramsey, 431 U.S. at 616, the justifications for the exception to

the warrant requirement are generally framed in terms of threats posed at the point of entry. See,

e.g., Montoya de Hernandez, 473 U.S. at 537 (“Since the founding of our Republic, Congress has

granted the Executive plenary authority to conduct routine searches and seizures at the border,

without probable cause or a warrant, in order to regulate the collection of duties and to prevent the

introduction of contraband into this country.”); Ramsey, 431 U.S. at 620 (“The border-search

exception is grounded in the recognized right of the sovereign to control, subject to substantive

limitations imposed by the Constitution, who and what may enter the country.”); United States v.

Thirty-seven (37) Photographs, 402 U.S. 363, 376 (1971) (“Customs officials characteristically

inspect luggage and their power to do so is not questioned . . . ; it is an old practice and is intimately

associated with excluding illegal articles from the country.”); Carroll v. United States, 267 U.S.

132, 154 (1925) (“Travelers may be [stopped and searched] 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 belonging as effects which may be lawfully brought in.”);

United States v. 12 200-Ft. Reels of Super 8MM Film, 413 U.S. 123, 125 (1973) (border search

authority is justified by the need to the prevent smuggling and enforce import restrictions);

Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) (the power to exclude aliens from

entering this country).

        None of those significant governmental interests in monitoring what comes in to the

country apply in this case.

        It is true that there is case law that extends the search authority at the border to departures

as well, and in particular, to potential violations of the export control laws. See, e.g., United States

v. Boumelhem, 339 F.3d 414, 423 (6th Cir. 2003) (finding that the government properly searched



                                                   38
a large cargo container before it left the United States because “the United States’s interest in

preventing the export of weapons to other countries also implicates the sovereign’s interest in

protecting itself”). But Riley indicates that the Fourth Amendment is not necessarily satisfied by

a simplistic likening of a computer to a searchable “container.” 16 See 134 S. Ct. at 2491.

       Applying the Riley framework, the national security concerns that underlie the enforcement

of export control regulations at the border must be balanced against the degree to which Kim’s

privacy was invaded in this instance. And as was set forth above, while the immediate national

security concerns were somewhat attenuated, the invasion of privacy was substantial: the agents

created an identical image of Kim’s entire computer hard drive and gave themselves unlimited

time to search the tens of thousands of documents, images, and emails it contained, using an

extensive list of search terms, and with the assistance of two forensic software programs that

organized, expedited, and facilitated the task. Based upon the testimony of both Special Agent

Hamako and Special Agent Marshall, the Court concludes that wherever the Supreme Court or the

Court of Appeals eventually draws the precise boundary of a routine border search, or however

either Court ultimately defines a forensic – as opposed to a conventional – computer search, this

search was qualitatively and quantitatively different from a routine border examination, and

therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in

progress.




16      For that reason, the Court does not feel compelled to follow the decision of the Fourth
Circuit in Ickes, 393 F.3d at 501, which preceded Riley and is also distinguishable on other
grounds. In that case, the border agents searched the defendant’s computer only after finding other
incriminating items during a physical search of the defendant’s vehicle at a border crossing. Id. at
502–03, 506. In addition, the defendant’s computer was seized and searched at the border, while
the defendant was in the agents’ custody. Id. at 503.
                                                39
       More fundamentally, after hearing all of the facts, the Court cannot help but ask itself

whether the examination in this case can accurately be characterized as a border search at all. And

if not, it surely cannot be justified by the concerns underlying the border search doctrine.

       It is true that Kim’s laptop was seized at the border – in this case, LAX – but it was not

even opened, much less searched, there. It was transported approximately 150 miles to San Diego,

it was retained for a limited period of time, and eventually, the laptop was returned. Meanwhile,

there was so little of note found in Kim’s luggage, and he posed so little of an ongoing threat to

national security, that he was permitted to board his flight.

       The Court recognizes that the concept of the “border” for Fourth Amendment purposes

extends beyond the physical boundary itself to the “functional equivalent” of the border, which

may include “an established station near the border” or other nearby convenient locations. See

Alemida-Sanchez v. United States, 413 U.S. 266, 272–73 (1973). And the Ninth Circuit has held

that the term “border” should be given a geographically flexible reading within limits of reason

derived from the underlying constitutional principles. Castillo-Garcia v. United States, 424 F.2d

482, 485 (9th Cir. 1970); see also Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966)

(the legality of a search not in the immediate vicinity of the border “must be tested by a

determination whether the totality of the surrounding circumstances, including the time and

distance elapsed . . . .”). So if Special Agent Hamako needed the assistance of his forensic team

to open the computer in the first instance, and that step was necessarily undertaken at a DHS office

rather than on the jetway, that aspect of the proceedings could arguably be considered to be an

extension of the border. But while the laptop was within the government’s custody and control, it

was copied. And it was the exact image of the hard drive that was subjected to the search by the

government’s forensic team, with the fruits of that search provided to the investigating agent for



                                                 40
further study. Indeed, the investigators’ sworn testimony to the Court made it clear that the

primary, if not the sole, purpose of the pre-planned encounter at the border was to obtain the laptop

and search it for evidence.

        Once the agents had secured the laptop and preserved every single file and folder it

contained for further examination, how does the examination of the copy and the tens of thousands

of emails and other files it contained for the next two weeks fall within the definition of a border

search, or the statutory provisions found in 19 U.S.C. § 1581(a), at all? And what aspect of the

security or territorial integrity of the nation was implicated at that point that would justify unlimited

scrutiny of the copy?

        This case is entirely distinguishable from Castillo-Garcia, which involved continuous

surveillance of a car until it was stopped more than 100 miles from the border, 424 F.2d at 485, or

United States v. Bilir, 592 F.2d 735, 741 (4th Cir. 1979). In Bilir, the court found that a “delayed

search and seizure . . . made some three to four miles from the actual border, some seven hours

after the observed border crossing; delayed primarily by a desire to confirm developing suspicion;

and following practically continuous surveillance in the interval” passed constitutional muster as

an extended border search. Id. at 741. In that case, the extended surveillance for the purpose of

confirming initial suspicion served to ‘“maintain[ ] the integrity of the border conditions keeping

the search and seizure within the governmental necessities of the border.’” Id., quoting United

States v. Fogelman, 586 F.2d 337, 350 (5th Cir. 1978) (Brown, C.J., concurring).

        Here, the search of the laptop was not predicated on any observation of Kim’s activities

within the United States whatsoever. And given the extensive nature and duration of the search

here and the use of a list of specific search terms, the search “did not possess the characteristics of

a border search or other regular inspection procedures. It more resembled the common nonborder



                                                   41
search based on individualized suspicion, which must be prefaced by the usual warrant and

probable cause standards . . . .” United States v. Brennan, 538 F.2d 711, 716 (5th Cir. 1976). 17

       That point is driven home by a review of the warrant application that was filed after the so-

called border search was completed.       After detailing his own experience and the statutory

background, the agent set forth the facts supporting his view that there was probable cause to

believe that the computer would contain evidence relating to violations of the Arms Export Control

Act. SW Aff. ¶¶ 10–42. First, the agent stated that emails already discovered on the computer

revealed that in 2008, Kim had procured six Honeywell accelerometers and shipped them to a

Chinese national, who subsequently provided them to two Iranian nationals. SW Aff. ¶¶ 11, 18–

40, and Att. A-1. Paragraph 15 then summarizes – in one sentence – the information provided by

Yang, and it relates only to the completed transaction in 2008. SW Aff. ¶ 15.

       After the affidavit lays out the probable cause, it describes the anticipated computer search

protocol: “With the approval of the Court in signing this warrant, agents executing this search will

employ the following procedures regarding computers and other electronic storage devices . . . .”

SW Aff. ¶ 43. The first step described was “[f]orensic [i]maging,” which, of course, had already

been accomplished, SW Aff. ¶ 44, and the next step was going to be the “[i]dentification and

[e]xtraction of [r]elevant [d]ata.” SW Aff. ¶¶ 45–50.




17      The Court need not determine whether the agent could have articulated probable cause to
believe that Kim had participated in a criminal conspiracy in the past and that the laptop would
contain evidence of that alleged conspiracy, because “[i]n cases where searches are made without
warrants, the Supreme Court has decreed that the existence of probable cause must be accompanied
by circumstances rendering the warrant procedure impracticable.” Brennan, 538 F.2d at 721, citing
Warden v. Hayden, 388 U.S. 294 (1967). Since there were no exigent circumstances present in
this case, if the search was not a “border” search within the meaning of Ramsey and other Supreme
Court precedent, then the failure to obtain a warrant requires suppression.

                                                42
       The warrant affidavit goes on for paragraphs explaining the highly technical process that

is involved in identifying and extracting data, the fact that it requires specific expertise, equipment

and software, and how challenging it can be. SW Aff. ¶¶ 45–46. There are paragraphs detailing

the incredible volume of material that can be stored on a laptop and how much time it takes to

review it all: “Analyzing data has become increasingly time-consuming as the volume of data

stored on a typical computer system and available storage devices has become mind-boggling.”

SW Aff. ¶ 48. The agent concludes by predicting that “[t]he identification and extraction process,

accordingly, may take weeks or months” from the date of the warrant authorization. SW Aff. ¶ 49.

       But Special Agent Hamako and the forensics agent both testified that no one performed

any searching or extraction after the warrant was obtained at all. 4/7 Tr. at 51; 4/8 Tr. at 23. In

other words, the highly challenging and complicated examination of a mind-boggling volume of

data was already complete. These undisputed facts militate against the conclusion that the only

search that was undertaken – without the warrant – was just a routine border search.

       After considering all of the facts and authorities set forth above, then, the Court finds, under

the totality of the unique circumstances of this case, that the imaging and search of the entire

contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration

and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing

investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and

was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying

the breadth of the government’s authority to search at the border, but also the border itself, that it




                                                  43
was unreasonable. Therefore, the motion to suppress the evidence seized as a result of that search,

which includes the materials listed in Attachment B-1 to the warrant affidavit, will be granted. 18

                                         CONCLUSION

       For the reasons stated above, it is ORDERED that defendants’ motion to suppress evidence

[Dkt. # 35] is GRANTED. It is further ORDERED that a status conference is scheduled for May

18, 2015 at 10:00 a.m. in Courtroom 3.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: May 8, 2015




18     The government did not even attempt to advance the argument that the issuance of the
warrant, in which probable cause was predicated almost exclusively on the emails themselves,
somehow cured the underlying illegality and provides grounds for denying the motion to suppress.
                                                44
