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Developing photographic film and reading computer disks is within the scope of a routine border search, a Southern District judge has ruled. In a decision that is apparently the first of its kind in the country, Judge Lewis A. Kaplan rejected a motion to suppress statements made and evidence seized from a convicted pedophile stopped at a Texas airport. He said that U.S. Customs agents had a “reasonable basis for suspecting that the camera, film and computer diskettes contained pornographic images.” The case involved defendant Stefan Irving, who was employed as a chief physician for the Middletown (N.Y.) School District when he pleaded guilty in 1982 to first-degree sexual assault for abusing young boys. In May 1998, he was under investigation as one of several individuals who traveled to Mexico to have sex with children. Alerted that Irving had visited an orphanage in Mexico, Customs agents stopped him and went through his baggage upon his return to Dallas-Fort Worth Airport on May 27, 1998. The search yielded a disposable camera and two computer diskettes. The camera contained photos of a guesthouse in Mexico that Judge Kaplan said “now figures prominently in the government’s case,” and photos of Irving with boys and another suspect in the investigation. The diskettes, the judge said, contained images of child erotica. Irving contended that his statements to the agents should be suppressed because they were made while he was in custody, and he was not given Miranda warnings. Deciding that the questioning of Irving was not a “custodial interrogation,” Judge Kaplan said in United States v. Irving, 03 Crim. 0633, that the agents “identified themselves to Irving in a place that, although not public in the ordinary sense of the word, was public in that it was an entry hall through which all arriving international passengers flowed in the ordinary course.” “The agents wore no uniforms, and there were no guns or handcuffs in view,” he said. “No force was used or threatened.” The agents also assured Irving that he could catch a later flight if their questions caused him to miss his connection to New York, and the room he was taken to for the interview was an “ordinary office,” rather than a “location with cells or other facilities indicative of a detention function.” “Thus, absent whatever weight ought to be given to the common understanding about entry points, the case for the proposition that this was a custodial interrogation is quite thin,” he said. “Moreover, this understanding will not bear the weight that Irving would place upon it.” While routine searches of people and their effects as they enter the United States are not subject to the Fourth Amendment’s requirements of reasonable suspicion, probable cause or a warrant, he said, Irving argued that this was not a routine search. ROUTINE SEARCH But Kaplan said, “The evidence established it was no different from searches conducted all the time, whether on hunches, at random, or because of some suspicion on the part of the inspector.” The judge said the “seizure and subsequent inspection of the contents of the camera and computer diskettes was more intrusive,” but added that that fact was “not dispositive.” He said several courts consider “personal notebook computers to be closed containers for the purposes of Fourth Amendment analysis.” He added that inspection of closed containers “comes within the scope of a routine border search and is permissible even in the absence of reasonable suspicion or probable cause.” “Indeed, any other decision effectively would allow individuals to render graphic contraband, such as child pornography, largely immune to border search simply by scanning images onto a computer disk before arriving at the border,” he said. The judge said it appeared that no court has decided the question of whether inspection of undeveloped film is within the scope of a routine search. But “given the strong national interest in the security of our borders, development of the film was routine in the requisite sense of the term,” he said. In any event, the judge said, the agents had reasonable suspicion for searching the diskettes and the film. “Accordingly, the search was constitutional even if it was more intrusive than routine,” he said. Assistant U.S. Attorney Michael Scudder represented the United States. Andrew Citron represented Irving.

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