United States District Court, D. Colorado
ORDER REQUIRING FURTHER BRIEFING
William J. Martinez United States District Judge.
the Court is Defendant's Motion to Suppress Evidence.
(ECF No. 19.) The Court held an evidentiary hearing on June
26, 2017. At the conclusion of that hearing, the Court stated
its intent to call for further briefing. The briefing the
Court needs is as follows.
Suspicion of Completed Crimes
Motion to Suppress argues, “[T]he Supreme Court has
made clear that the reasonable suspicion standard relates to
ongoing or imminent criminal activity, not historic
acts.” (Id. at 13.) In support, Defendant
cites United States v. Cortez, 449 U.S. 411, 417
(1981), for the proposition that “[a]n investigatory
stop must be justified by some objective manifestation that
the person stopped is, or is about to be, engaged in criminal
activity.” At the evidentiary hearing, the
Government's direct examination and the Defendant's
cross-examination took pains to distinguish forward-looking
from backward-looking investigation, apparently with this
argument in mind.
footnote attached to the specific sentence from
Cortez quoted above reads, “Of course, an
officer may stop and question a person if there are
reasonable grounds to believe that person is wanted for past
criminal conduct.” 449 U.S. at 417 n.2. And the Supreme
Court later held as follows:
We need not and do not decide today whether Terry
stops to investigate all past crimes, however serious, are
permitted. It is enough to say that, if police have a
reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in or is
wanted in connection with a completed felony, then a
Terry stop may be made to investigate that
United States v. Hensley, 469 U.S. 221, 229 (1985).
Accordingly, what authority supports the notion that
“reasonable suspicion” must refer to suspicion of
an ongoing or future crime, and not a completed
number of the cases on which Defendant relies hold that
“manual searches” of a computer-a human searching
the computer simply by clicking through visible directories
and files-are permissible suspicionless searches. See
United States v. Cotterman, 709 F.3d 952, 960-61 (9th
Cir. 2013) (en banc); United States v.
Saboonchi, 990 F.Supp.2d 536, 547 (D. Md. 2014).
Special Agent McGuckin began searching the forensic image of
Defendant's laptop on December 1, 2015, he did so by
clicking through EnCase's representation of the directory
structure, essentially as he could have done on the laptop
itself had he known Defendant's password. In other words,
as the Court understands the evidence, the only EnCase
features McGuckin had used at that point were: (1) its
ability to make a forensic image, thus preserving the
original hard drive from alteration or damage (a matter the
Court finds immaterial to the present analysis); and (2) its
ability to bypass a disk's password protection and
display the disk's unencrypted contents in essentially
the same directory structure that one would see when
accessing the disk directly.
the fact that McGuckin needed a special tool to bypass
Defendant's password convert his initial search into
something other than a “manual search”?
Cf. United States v. McAuley, 563 F.Supp.2d
672, 678 (W.D. Tex. 2008) (“A password is simply a
digital lock. Locks are usually present on luggage and
briefcases, yet those items are subject to
‘routine' searches at ports of entry all the
time.” (footnote omitted)).
Subjective Motivation and Reasonable Suspicion
permissible view of the evidence introduced at the hearing is
that Special Agent Allen suspected Defendant might be engaged
in some sort of criminal activity, but Allen's decision
to have the laptop forensically searched had nothing to do
with that suspicion because Allen believed that the
“border search” doctrine permits suspicionless
searches of all digital devices. Assuming
arguendo that the border search doctrine requires
reasonable suspicion to conduct anything other than a manual
search of a digital device, can a government official be said
to possess reasonable suspicion when that official's
decision to search was not subjectively motivated by the
facts from which reasonable suspicion might arise?
Specificity of ...