United States Court of Appeals For the Second Circuit

UNITED STATES OF AMERICA, Government-Appellee v. Thomas CROWN and Hans KNUTZHORN, Defendant-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES OF AMERICA

Timothy T. Kim and David Bowen, Counsels for Government-Appellee June Morgan Hu and Joseph Kay, Student Editors Elizabeth F. Bernhardt, Esq. Lecturer in Law Legal Practice Workshop, Spring 2014 Columbia University, School of Law

TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ 2 TABLE OF AUTHORITIES ........................................................................................................... 3 STIPULATIONS ............................................................................................................................. 5 STATEMENT OF JURISDICTION ............................................................................................... 6 STATUTORY AND CONSTITUTIONAL PROVISIONS ........................................................... 7 RULES .......................................................................................................................................... 10 QUESTIONS PRESENTED ......................................................................................................... 11 STATEMENT OF THE CASE ..................................................................................................... 12 STATEMENT OF THE FACTS ................................................................................................... 14 SUMMARY OF ARGUMENT ..................................................................................................... 19 ARGUMENT ................................................................................................................................ 21 I. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS DENIAL OF CROWNS MOTION TO SUPPRESS AS THE GOVERNMENTS SEARCH OF CROWNS LAPTOP WAS WITHIN ITS BORDER SEARCH AUTHORITY. ....................................................................... 21 A. The Search of Defendant Crowns Laptop Computer Was Not an Extended Border Search Because It Occurred at the Functional Equivalent of the Border........................... 23 B. Courts Unanimously Agree That Routine Border Searches of Computers Do Not Require Reasonable Suspicion and a New Exception Should Not Be Made For the Manner By Which the Search Was Conducted. ....................................................................................... 24 C. In Any Case, the Search Was Supported By Reasonable Suspicion. ............................... 30 II. THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S DENIAL OF DEFENDANT KNUTZHORNS MOTION TO SUPPRESS AS DEFENDANT KNUTZHORN WAS NOT IN POLICE CUSTODY AT THE TIME OF THE INITIAL QUESTIONING AND THE POLICE DID NOT DELIBERATELY ENGAGE IN A TWO-STEP INTERROGATION. ........................ 35 A. The Questioning that Occurred on the Premises of Defendant Knutzhorns Home Was General On-The-Scene Questioning That Did Not Require That Defendant Knutzhorn Be Mirandized And a Reasonable Person Under the Same Circumstances Would Not Perceive the Questioning as Custodial Interrogation. .......................................................................... 36 B. The Confession That Defendant Knutzhorn Gave to the Officers at the Beth Israel Medical Center Is Admissible as Evidence Against Him Because It Was Not the Result of a Deliberate Two-Step Interrogation Process on Behalf of the FBI officers That Obtained Defendant Knutzhorns Confession. ..................................................................................... 44 CONCLUSION ............................................................................................................................. 50

TABLE OF AUTHORITIES Cases Berghuis v. Thompkins, 560 U.S. 370 (2010)................................................................................ 50 Berkemer v. McCarty, 468 U.S. 420 (1984) ...................................................................... 37, 39, 40 California v. Behler, 463 U.S. 1121 (1983) ............................................................................ 37, 39 Howes v. Fields, 132 S.Ct. 1181 (2012) ............................................................................ 38, 41, 42 J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011) .................................................................... 38, 39 Miranda v. Arizona, 384 U.S. 436 (1966) ....................................................... 13, 20, 37, 39, 40, 41 Missouri v. Seibert, 542 U.S. 600 (2004) .......................................................... 6, 21, 45, 46, 47, 48 Oregon v. Elstad, 470 U.S. 298 (1985) ............................................................................... 6, 45, 46 Oregon v. Mathiason, 429 U.S. 492 (1977) .................................................................................. 37 Stansbury v. California, 511 U.S. 318 (1994) ......................................................................... 37, 39 Tankleff v. Senkowski, 135 F.3d 235 (1998) ............................................................................ 38, 39 Thompson v. Keohane, 516 U.S. 99 (1995) ............................................................................. 38, 39 Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001) ............................................................................ 27 United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006) ................................................................ 29 United States v. Al-Marri, 230 F. Supp. 2d 535 (S.D.N.Y. 2002) ................................................ 27 United States v. Asbury, 586 F.2d 973 (2d Cir. 1978)................................................. 23, 25, 34, 35 United States v. Capers, 627 F.3d 470 (2d Cir. 2010) ...................................................... 21, 46, 49 United States v. Carter, 489 F.3d 528 (2d Cir. 2007) ............................................................. 21, 46 United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc) ................... 23, 24, 26, 30, 31 United States v. Ehrmann, 421 F.3d 774 (8th Cir. 2005) .............................................................. 33 United States v. FloresMontano, 541 U.S. 149 (2004) ............................................................... 22 United States v. Gaviria, 805 F.2d 1108 (2d Cir. 1986) ......................................................... 24, 25 United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) ...................................................................... 26 United States v. Irving, 452 F.3d 110 (2d Cir 2006) ....................................... 24, 25, 26, 27, 31, 35 United States v. LinarezDelgado, 259 F. App'x 506 (3d Cir.2007) ............................................ 26 United States v. Montoya de Hernandez, 473 U.S. 531 (1985)............................. 22, 25, 26, 32, 34 United States v. Rodriguez, 356 F.3d 254 (2d Cir. 2004) ....................................................... 23, 36 United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) .................................................................. 23, 36 United States v. Santana, 485 F.2d 365 (2d Cir. 1973)................................................................. 31 United States v. Santos, 403 F.3d 1120 (10th Cir. 2005) .............................................................. 33 United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) ................................................................... 31 United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010) .......................................................... 33 United States v. Sokolow, 490 U.S. 1 (1989)................................................................................. 34 United States v. Titemore, 437 F.3d 251 (2nd Cir. 2006) ............................................................. 41 United States v. Unham, 168 F.3d 532 (1st Cir. 1999) ................................................................. 27 United States v. Williams, 617 F.2d 1063 (5th Cir. 1980)....................................................... 28, 31 Yarborough v. Alvarado, 541 U.S. 652 (2004) ................................................................. 38, 39, 43 Statutes 18 U.S.C. 1343 ....................................................................................................................... 9, 33 18 U.S.C. 2314 ............................................................................................................................. 9 18 U.S.C. 371 ......................................................................................................................... 8, 13 18 U.S.C. 545 ......................................................................................................................... 8, 12 49 U.S.C. 44901 .................................................................................................................. 9, 23, 29

Other Authorities April 2013 Traffic Report, THE PORT AUTHORITY OF NEW YORK & NEW JERSEY........................ 32 Consumer Sentinel Network Data Book for January - December 2013, UNITED STATES FEDERAL TRADE COMMISSION (2014) ....................................................................................................... 33 Mary Ellen Callahan, Privacy Issues in Border Searches of Electronic Devices, DATA PROTECTION LAW AND POLICY (2009) ...................................................................................... 30 Rules Fed. R. Crim. P. 12 (b) (3) (c) ................................................................................................. 10, 13 Constitutional Provisions U.S. Const. Amend. IV .............................................................................................................. 7, 21 U.S. Const. Amend. V ..................................................................................................................... 8

STIPULATIONS 1. The parties have agreed that jurisdiction and venue are proper in the United States District Court for the Eastern District of New York, and the United States Court of Appeals for the Second Circuit. 2. The parties have agreed not to dispute any factual assertions within the record. 3. The Second Circuit will only consider federal case law and articles published prior to December 24, 2013. 4. The parties have agreed that the suppression and appeals motions and notices were timely filed; the defendants have agreed that their trial was properly consolidated. 5. The parties have agreed that if the trial court erred in denying the defendants motion to suppress, the admission of both Defendant Crowns computer data and Defendant Knutzhorns statements would not be a harmless error because the Government did not have overwhelming evidence against each defendant. For Defendant Crown, the parties have also agreed that he did not voluntarily proffer his laptop for forensic analysis at Quantico. 6. The parties have agreed that Defendant Knutzhorn is not challenging the voluntariness of the confession under an Elstad framework. Oregon v. Elstad, 470 U.S. 298 (1985). 7. The parties have agreed that Defendant Knutzhorns sole argument with respect to the second round of question is that the police conducted a deliberate two-step interrogation under the Seibert exception to Elstad. Id.; Missouri v. Seibert, 542 U.S. 600 (2004).

STATEMENT OF JURISDICTION 1. The United States District Court for the Eastern District of New York had original federal question jurisdiction under 18 U.S.C. 2338 (2012). 2. The United States Court of Appeals for the Second Circuit has jurisdiction of appeal from the final decision of the United States District Court for the Eastern District of New York under 28 U.S.C. 1291 (2012).

STATUTORY AND CONSTITUTIONAL PROVISIONS U.S. Const. Amend. IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 18 U.S.C. 371 If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. . . . 18 U.S.C. 545 Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law[s]hall be fined under this title or

imprisoned not more than 20 years, or both. Proof of defendants possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section. Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States. 18 U.S.C. 1343 Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both 18 U.S.C. 2314 Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. . . 49 U.S.C. 44901 (e) Mandatory Screening Where EDS Not Yet Available. As soon as practicable but not later than the 60th day following the date of enactment of the Aviation and Transportation Security Act and until the requirements of subsection (b)(1)(A) are met, the Under Secretary shall require alternative means for screening any piece of checked baggage that is not screened

by an explosives detection system. Such alternative means may include 1 or more of the following: (1) A bag-match program that ensures that no checked baggage is placed aboard an aircraft unless the passenger who checked the baggage is aboard the aircraft. (2) Manual search. (3) Search by canine explosives detection units in combination with other means. (4) Other means or technology approved by the Under Secretary.

RULES Fed. R. Crim. P. 12 (b) (3) (c) A motion to suppress evidence

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QUESTIONS PRESENTED 1. Was the District Court correct in denying Defendant Crowns motion to suppress incriminating evidence obtained from a search of his computer at the border? a. Did the search of the laptop require a finding of reasonable suspicion pursuant to the extended border search doctrine? b. Should this Court create a new requirement of reasonable suspicion for all border searches of computers and in particular, for the manner by which Defendant Crowns computer was searched? c. Assuming, arguendo, that reasonable suspicion was required, did the Government have reasonable suspicion to conduct a search of Defendant Crowns laptop? 2. Was the District Court correct in denying Defendant Knutzhorns motion to suppress incriminating statements made by Defendant Knutzhorn to the police? a. Was the conversation between Officer Paretti and Defendant Knutzhorn, which took place on the premises of Knutzhorns home and in full view of the general public, the type of general on-the-scene questioning that did not require that him to be Mirandized and that a reasonable person would not have perceived as custodial interrogation? b. Did the confession that Defendant Knutzhorn gave while in police custody at Beth Israel Medical Center, after Knutzhorn had been Mirandized and again told that he had the right to remain silent, occur after Knutzhorn had voluntarily agreed to waive his Miranda rights?

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STATEMENT OF THE CASE 1. Indictment 13-CR-1208 was filed on May 24, 2013, in two counts, charging defendants Crown and Knutzhorn with: (1) fraudulently and knowingly importing a stolen Vermeer painting into the United States, in violation of Title 18, United States Code, Section 545 and and (2) conspiring to defraud or commit an offense against the United States by importing merchandise they knew to have been stolen in violation of Title 18, United States Code, Section 371. (R. 610). 2. On June 14, 2013, Defendant Crown filed a Fed. R. Crim. P. 12 (b) (3) (c) motion to suppress evidence obtained from a search of his computer, alleging that the search of his computer was an extended border search and/or a nonroutine border search and therefore, the Government was required to show a finding of reasonable suspicion to support the search. (R. 1617). In addition, Crown alleged that the Government had failed to support the search with reasonable suspicion and therefore, the materials from the search were illegally obtained in violation of the Fourth Amendment. (R. 1617). 3. On June 14, 2014 Defendant Knutzhorn filed a Fed. R. Crim. P. 12 (b) (3) (c) motion to suppress evidence obtained regarding his first statement, The Vermeer, because it was given without having been Mirandized and also his second statement given at the hospital, because it was the product of a deliberate two-step interrogation process designed to circumvent the protections of Miranda. Miranda v. Arizona, 384 U.S. 436 (1966); (R. 27). 4. The Government filed a response to Crowns motion to suppress on June 18, 2013, stating that Crowns computer was seized as part of a routine border search and thereby does not require reasonable suspicion. (R. 3233). Further, the facts show that the United States

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Customs agents had reasonable suspicion to conduct a full forensic search of Crowns computer. (R. 3233). 5. The Government filed a response to Knutzhorns motion to suppress on June 18, 2013, arguing that the first statement was admissible because Knutzhorn was not in custody and was not subjected to interrogation when the first incriminating statement was made and that the second statement was admissible because it was voluntarily made without an unlawful delay in the giving of Miranda warnings. (R. 35). 6. The District Court found in favor of the Government and denied both of the defendants motion to suppress on June 27, 2013. (R. 65). 7. Trial of the defendants commenced on July 15, 2013 and concluded on September 5, 2013, when the jury convicted both defendants on both counts. (R. 71). 8. Defendant Crown was sentenced to ninety-nine months of imprisonment. (R. 72). 9. Defendant Knutzhorn was sentenced to sixty-six months' imprisonment. (R. 74).

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STATEMENT OF THE FACTS On or around May 28, 2013, defendants Thomas Crown and Hans Knutzhorn traveled to Amsterdam, Netherlands, returning on the evening of April 5, 2013 at John F. Kennedy International Airport (JFK). (R. 610, 41). While inspecting arriving passengers that evening at JFK, Customs and Border Protection (Customs) Agent Eddie Malone spotted something unusual. One of the passengers, who happened to be Knutzhorn, was wearing sunglasses despite the fact it was well into the evening and the individual was wearing his sunglasses while indoors. (R. 41). Further, Agent Malone noticed that the individual was fidgeting and nervous. (R. 41). Having observed the normal conduct of hundreds of passengers just that day, Agent Malone became suspicious by the unlikely combination of such unusual behavior. (R. 42) Upon arriving, passengers are required to answer basic questions from Customs agents regarding their trip and Agent Malone continued to observe Knutzhorn while Knutzhorn answered questions. Agent Malone noted that Knutzhorn, a naturalized United States Citizen, seemed to speak English well and there did not seem to be a language barrier issue. (R. 42). Yet, Knutzhorn seemed to have unusual difficulty with giving a straight answer to rather simple questions. (R. 42). Throughout this entire period, Knutzhorn was acting nervously, shifting his weight from one foot to the other. (R. 42). When asked about his traveling companions, Knutzhorn indicated that Defendant Crown was traveling with him. (R. 42). Agent Malone immediately shot a glance towards Crown and happened to catch Crown giving his accomplice Knutzhorn a warning look. (R. 43). Becoming evermore suspicious, Agent Malone decided to run a criminal background check on both suspects. (R. 43). An FBI Identification Record indicated that Defendant Crown had a prior conviction for wire fraud. (R. 43). Taking into account their unusual behavior and criminal

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background, Agent Malone decided to conduct a search of both the suspects and their belongings. (R. 43). After a simple patdown search, Agent Malone also searched through the content of Defendant Crowns laptop computer. (R. 43). Agent Malone found that nearly all the files on the computer, including access to the desktop itself, were unprotected by a password. (R. 43). Just a single file, titled Work, was protected by an encryption of some sort. (R. 43). Curious about the contents of the lone protected file, Agent Malone asked Defendant Crown if Crown would mind opening the file so that Agent Malone could ensure that it did not contain contraband. (R. 44). Defendant Crown replied that the contents were confidential business files and flat-out refused to cooperate. (R. 44). Consequently, Agent Malone was forced to use the agencys decryption program to bypass the password. (R. 44). Although Agent Malone has a degree and extensive training in computer science, the decryption program had absolutely no effect on the files encryption, which seemed extraordinarily well protected for a so-called business file. (R. 44). Uneasy with the circumstances, Agent Malone allowed Defendant Crown to clear Customs, but retained custody over the laptop until the contents of the file could verified. (R. 44). Agent Malone notified Defendant Crown that the laptop would be returned to him after it had been fully cleared by Customs. (R. 44). The laptop computer was sent to Customs New York forensic office the next day. (R. 44). Surprisingly, the New York forensic office was also unable to bypass the encrypted file. For a so-called business file, the encryption was shockingly difficultas both the forensic office and Agent Malone kept running into the same walls. (R. 44). As a result, the computer was finally sent to specialists at the FBI laboratory in Quantico, Virginia, where the encryption was finally broken. (R. 44). Subsequently, the agents opened the file to verify its contents and instead

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discovered highly incriminating evidence of criminal smuggling. (R. 44). More extensive searches of the computer were also conducted. This included accessing deleted and ghost files from the computer, which lead to the discovery of more incriminating evidence. (R. 44). This evidence led to the indictment and arrest of Defendant Crown. (R.45). On the evening of April 10, 2013, four federal officers arrived in front of Knutzhorns townhouse. (R. 53). At the time of their arrival, Knutzhorn was on the second floor balcony drinking a martini. (R. 28). As Knutzhorn saw two police cars pull up on the street, he inhaled an olive and in his agitation, fell from the balcony to the ground below and was rendered unconscious. (R. 28). As they witnessed Knutzhorn fall, the agents believed that it may have been a suicide attempt. (R. 53). When the agents reached Knutzhorn, they discovered that he was choking on an olive and one of the officers jaw thrusted Knutzhorn to try and clear his airway while another officer called emergency services. (R. 53). When the Emergency Medical Team (EMTs) arrived after approximately five minutes, the sirens on the police car were on and Knutzhorn was not yet conscious, although he was breathing. (R. 62). Three of the officers on the scene were engaged in restraining the defendants distraught daughter to prevent her from interfering with the medical treatment that the defendant was receiving. (R. 63). Based on the information that the EMTs had received over the radio about the nature of the injuries, the EMTs suspected a spinal injury. (R. 62). The EMTs proceeded to prepare Knutzhorn for transport with the potential for spinal injury in mind and strapped him to a backboard in addition to strapping a cervical collar around Knutzhorns neck as he slipped in and out of consciousness. (R. 63). The EMTs also secured an oxygen mask to Knutzhorns face. (R.63). Knutzhorn regained consciousness shortly thereafter. (R. 64).

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At some point, additional FBI officers arrived in their vehicles, accidently blocking the ambulance. (R. 64). When one of the paramedics alerted Detective Paretti of the newly arrived vehicles, Paretti dealt with the situation by having an officer move the vehicle. He obtained permission from one of the EMTs to ask Knutzhorn several questions and then proceeded to do so. (R. 54). Detective Paretti asked Knutzhorn how he was doing and Knutzhorn responded that he was doing ok. (R. 54). Detective Paretti proceeded to ask Knutzhorn about his relationship to Defendant Crown to which Knutzhorn responded that they were friends. (R. 54). Detective Paretti then asked why Knutzhorn had recently travelled into New York to which Knutzhorn responded that the trip was for business. (R. 54). When Detective Paretti asked what kind of business he was engaged in, Knutzhorn did not respond. (R. 54). Detective Paretti then asked if Knutzhorn liked art and whether Crown liked art and Knutzhorn started shaking his head. (R. 55). Detective Paretti then asked if Knutzhorn knew anything about a stolen painting and Knutzhorn shook his head. (R. 55). Detective Paretti repeated the question and Knutzhorn mumbled something. (R. 55). When Detective Paretti asked Knutzhorn to repeat his answer, Knutzhorn said The Vermeer. (R. 55). The officers then arrested Knutzhorn and read him his Miranda rights. (R. 28). The officers handcuffed Knutzhorn to the backboard and Detective Paretti and Officer McCann traveled to Beth Israel Medical Center (the hospital) in the ambulance with him. (R. 59). Approximately twenty minutes after arriving at the hospital, Detective Paretti and Officer McCann were permitted by the doctors to interrogate Knutzhorn for the first time. (R. 59). Detective Paretti and Officer McCann turned on a tape recorder in order to record the confession given by Knutzhorn on tape. (R. 59). Officer Paretti asked Knutzhorn to repeat what he said earlier as they were getting on the ambulance (R. 55). Knutzhorn asked if he had the right to

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remain silent and Officer McCann told Knutzhorn that he did and Knutzhorn then consented to answer the officers questions by saying I will do this then. (R. 55). The officers stated that they knew what Knutzhorn had said earlier and asked him several questions. After remaining silent through several of the officers questions, Knutzhorn then said I-I helped Tom smuggle the Vermeer. It was him and I. Tom and I. That was the purpose of our trip. Im sorry. (R. 56).

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SUMMARY OF ARGUMENT The District Court was correct in denying Defendant Crowns motion to suppress incriminating evidence obtained from a search of his computer at the border and therefore, this Court should affirm the District Courts decision. Searches of people and property at our borders and their functional equivalents are per se reasonable and they do not require a warrant, probable cause, or reasonable suspicion. Because the laptop computer in question was detained at the border and remained in the custody of Customs at the time of the search, the Governments search of the computer was not an extended border search, as alleged by Defendant Crown. (R. 44). Moreover, courts have unanimously recognized that no suspicion is required for border searches of computers, with only the Ninth Circuit objecting to the manner by which a computer may be searched without suspicion. The Second Circuit should not adopt the Ninth Circuits rule from Cotterman with respect to the manner by which the computer was searched and require reasonable suspicion in this instance. Lastly, even assuming, arguendo, that this search required reasonable suspicion, the search would still be proper, as this search was nevertheless supported by reasonable suspicion. The District Court was also correct in denying Defendant Knutzhorns motion to suppress incriminating statements made by him to the police. Knutzhorns seeks to overturn the denial of his motion to suppress. Knutzhorn asserts that the two sets statements that he made on April 10, 2013 should be suppressed because the first statement was given while Knutzhorn was in police custody and that the officers failed to deliver him his Miranda warnings in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Furthermore, Knutzhorn asserts that the police used a deliberate two-step interrogation process to undermine the effectiveness of the Miranda warning prior to

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obtaining the second statement and that this second statement should therefore be suppressed as well. The first statement given by Knutzhorn on April 10, 2014 was not given while Knutzhorn was in police custody and was properly admitted as evidence by the District Court. Knutzhorn had not been placed in police custody at the time the statement was given nor was Knutzhorn subject to conditions that a reasonable person would not have perceived as custodial interrogation. In regards to the second statement given by Knutzhorn, he had been properly Mirandized before he was questioned and then waived his Miranda rights before speaking with the officers. The second statement was properly attained and was not the result of a deliberate two-step interrogation process that undermined the effectiveness of the Miranda warnings, even when assuming for the sake of argument that Knutzhorn was in custody when he gave his first incriminating statement. The test for deliberateness provided in Missouri v. Seibert, 542 U.S. 600 (2004), and as applied in the Second Circuit in United States v. Carter, 489 F.3d 528 (2d Cir. 2007), and United States v. Capers, 627 F.3d 470 (2d Cir. 2010), shows that the officers did not engage in a deliberate two-step interrogation process in obtaining Knutzhorns second statement. The confession that Knutzhorn gave to the officers at the Beth Israel Medical Center occurred after Knutzhorn had voluntarily waived his Miranda rights and is therefore admissible as evidence against him and was not the result of a deliberate two-step interrogation process on behalf of the FBI officers that obtained Knutzhorns confession.

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ARGUMENT I. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS DENIAL OF CROWNS MOTION TO SUPPRESS AS THE GOVERNMENTS SEARCH OF CROWNS LAPTOP WAS WITHIN ITS BORDER SEARCH AUTHORITY. The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated U.S. Const. Amend. IV. The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (internal quotation marks and citations omitted). In regards to border searches, the Supreme Court has announced that [t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border and has noted on many occasionsthat the expectation of privacy is less at the border than it is in the interior. United States v. FloresMontano, 541 U.S. 149, 15254 (2004). Moreover, not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border. Montoya de Hernandez, 473 U.S. at 539-40. Pursuant to this interest, the Government has broad authority to conduct searches at the border. In particular, routine searches of people and property at our borders and their functional equivalents are per se reasonable, and do not require a warrant, probable cause, or reasonable suspicion. See, e.g., Montoya de Hernandez, 473 U.S. at 538; see also Flores-Montano, 541 U.S. at 152. In the present case, Defendant Crown alleges that because the search of the laptop computer continued at off-site locations, the search was an extended border search and therefore required reasonable suspicion. (R. 1718). However, the search of the laptop 21

computer was not an extended border search, as it had not yet cleared customs at the time the search was conducted. Defendant Crown also requests that a special exception from the border search doctrine be created for laptop computers, citing the special privacy interests inherent in a computer and the manner by which the search was conducted. (R. 1718). Accordingly, Crown alleges that the search of his computer should have been supported by reasonable suspicion. However, courts have unanimously recognized that border searches of computers, like all other closed containers, can be conducted without suspicionwith only the Ninth Circuit objecting to the manner by which a computer may be searched without suspicion. United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc) (held that a cursory search of a computer may be conducted without reasonable suspicion, requiring reasonable suspicion only for a forensic examination). Moreover, the manner by which the computer was searched was also proper. The use of the decryption program to break the password protection is a modern analogue to Customs longstanding authority to break physical locks to search closed containers and was therefore proper. 49 U.S.C. 44901 (e). As for the accessing of the deleted and ghost files on the computer, if Crown had subjective knowledge of their existence, then those files should be treated like any other file carried in a closed container. On the other hand, if Crown did not have subjective knowledge of their existence, then Crown was without any expectation of privacy with respect to those files at all. Either way, the accessing of those files was proper. Lastly, even assuming that reasonable suspicion was required, the search would remain proper because the search was in fact supported by reasonable suspicion. Considering the factual circumstances and the presence of five Asbury factors, it is clear that the Government had a reasonable basis for conducting its search. United States v. Asbury, 586 F.2d 973 (2d Cir. 1978).

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Therefore, it is clear that this Court should affirm the decision below and find that the search of Crowns laptop was within the Governments border search authority. The standard of review for evaluating the District Courts ruling on a suppression motion is clear error as to the District Courts factual findings, and de novo as to questions of law. E.g. United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004). The evidentiary record is reviewed in the light most favorable to the government. E.g. United States v. Rosa, 626 F.3d 56, 61 (2d Cir. 2010). A. The Search of Defendant Crowns Laptop Computer Was Not an Extended Border Search Because It Occurred at the Functional Equivalent of the Border. The extended border search doctrine was developed to address circumstances involving a search initiated at a time and place removed from the bordertypically after an initial Customs clearance. The heart of the doctrine is that once someone has cleared the border, he or she has regained an expectation of privacy that was otherwise absent prior to clearing the border. United States v. Cotterman, 709 F.3d at 961. Because of the regained expectation of privacy, the Government is required to show reasonable suspicion as a basis for performing an extended border searchunlike searches at the border or its functional equivalent. Id at 961. If property is searched at a location other than the first place of entry into the United States, the search is not automatically transformed into an extended border search so long as it remains in the custody of Customs throughout the search without having been cleared yet. Such a search is still at the functional equivalent of the border. For example, in United States v. Gaviria, the Second Circuit upheld a search conducted eight days later and a considerable distance away from the initial point of entry into the U.S. (Miami to New York) as a search at the functional equivalent of the border and this Court rejected the defendant's claim that it was an extended border search, stating that an extended border search is a search that is usually conducted after a

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person or some property has cleared an initial customs checkpoint and has entered the United States. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986) (emphasis added); see also Cotterman, 709 F.3d at 95657 (upholding the search of a laptop computer three days after and 170 miles from its initial entry as a search at the functional equivalent of the border). Moreover, the Second Circuit has held that subsequent searches following initial Customs inspections arelike the initial inspectionvalid border searches that do not require reasonable suspicion so long as the item in question has not yet been cleared by Customs. United States v. Irving, 452 F.3d 110, 124 (2d Cir 2006). Lastly, airports have long been considered by courts to be a functional equivalent of the border and consequently, a search there may fit within the border search exception. See, e.g., Gaviria, 805 F.2d at 1112. The search of the Defendants laptop by Agent Eddie Malone was conducted at JFK airport (R. 44) and accordingly, the Customs agents had the authority to a search without any degree of suspicion. Moreover, subsequent searches of the laptop at the forensic office in New York and Quantico did not require reasonable suspicion as subsequent searches following initial Customs inspections do not require reasonable suspicion so long as the item in question has not yet been cleared by Customs. Irving, 452 F.3d at 124. Therefore, because the computer remained in the custody of Customs without having been cleared yet, the subsequent searches did not transform the search into an extended border search and did not require reasonable suspicion. See Gaviria, 805 F.2d at 1112. B. Courts Unanimously Agree That Routine Border Searches of Computers Do Not Require Reasonable Suspicion and a New Exception Should Not Be Made For the Manner By Which the Search Was Conducted. In the long time that the Supreme Court has recognized the border search doctrine, it has found just one exception to suspicionless border searches: highly intrusive searches of ones

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person. See, e.g., Montoya de Hernandez, 473 U.S. at 541 (upholding the 24-hour detention of a woman suspected of smuggling drugs in her digestive system, followed by a pregnancy test and rectal examination, based on reasonable suspicion). The Second Circuit has also limited itself to the Supreme Courts single exception to the border search doctrine, requiring reasonable suspicion for involuntary strip searches. Asbury, 586 F.2d at 97576. With respect to property searches, the Second Circuit has long ruled that searches of a persons luggage or personal belongings are routine searches. Irving, 452 F.3d at 124; Asbury, 586 F.2d at 975. Thus, despite acknowledged limits on body searches at the border, those limitations have not been extended by the Supreme Court or the Second Circuit to searches of propertywhether it is luggage, a gas tank, or a computer. Montoya de Hernandez, 473 U.S. at 541; Irving, 452 F.3d at 124. Of course, this does not mean that there are no limits on the Governments authority to search property at the borderthe touchstone of the Fourth Amendment analysis will always be reasonableness. Montoya de Hernandez, 473 U.S. at 538. As for border searches of computers, however, courts that have confronted the question have unanimously recognized that no suspicion is required. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (upheld the border search of a computer during a search at the United States-Canada border and rejected the defendants plea for a reasonable suspicion requirement for border searches of computers); see also, e.g., United States v. LinarezDelgado, 259 F. App'x 506, 508 (3d Cir. 2007) (held that border searches of electronic devices may be conducted without reasonable suspicion, stating that [d]ata storage media and electronic equipment, such as films, computer devices, and videotapes, may be inspected and viewed during a reasonable border search). The sole exception is the Ninth Circuits decision last December, which only limited the manner by which computers may be searched without suspicion. Cotterman, 709 F.3d at 952, 957.

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As for the Second Circuit, this Court has not yet directly addressed the issue of border searches of computers. See, e.g., Irving, 452 F.3d at 124. (upheld the validity of the border search of electronic media on the ground that it was supported by reasonable suspicion, but left the issue of whether reasonable suspicion was required unresolved.) Now confronted with the question, this Court should follow the lead of other courts and refuse to create a new requirement of reasonable suspicion for all border searches of computers. The storage devices of computers are conceptually analogous to other closed containers, which are subject to suspicionless border searches, and treating computers differently has no basis in the Fourth Amendment. A computer file is a repository for information and images in electronic form, just as a footlocker is a repository for more tangible items such as papers and other personal effects. Trulock v. Freeh, 275 F.3d 391, 409 (4th Cir. 2001) (Michael, J., concurring in part). Therefore, [t]here is no justification for favoring those who are capable of storing their records on computer over those who keep hard copies of their records. Id. at 584. The differences between computer files and physical repositories of personal information and effects are legally insignificant. Trulock, 275 F.3d at 410. Accordingly, for Fourth Amendment purposes, [c]ourts have uniformly agreed that computers should be treated as if they were closed containers. United States v. Al-Marri, 230 F. Supp. 2d 535, 541 (S.D.N.Y. 2002); United States v. Unham, 168 F.3d 532, 536 (1st Cir. 1999); Trulock, 275 F.3d at 403. Whether documents are kept in a hard copy in a manila folder or an electronic one should not affect the authority of Customs to search the latter. Had the Defendant carried hard copies of the same incriminating evidence in a briefcase that was contained on his computer, there would be no doubt that a Customs agent could, without any suspicion, search the contents of the briefcase and

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seize any evidence found during the search. Irving, 452 F.3d at 124. Making such an arbitrary distinction is antithetical to the Fourth Amendment and common sense. Moreover, the claim that people have special sensitivity with respect to their electronic privacy over the privacy rights they have in their physical possessions is unsubstantiated. Passengers often carry with them highly personal items that reveal details about ones private life as much as what a computer might reveal. Nevertheless, such items are routinely searched during suspicionless border searches because the privacy interests implicated in these items must yield to the Government's countervailing interest in border security. Constitutionally speaking, arbitrarily favoring privacy rights in property possessed in their electronic form as opposed to their physical form makes little sense. Additionally, the storage capacity of a laptop computer does not raise a constitutionally significant distinction because the Government already has the authority to search other closed containers that easily rival, if not surpass, the storage capacity of most computers. Under its border search authority, the Government already has the authority to conduct suspicionless searches of commercial container cargo ships some of which have the capacity to hold up to 18,270 twenty foot containers. See, e.g., United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (The United States has plenary power to stop and board any American flag vessel anywhere on the high seas in the complete absence of suspicion of criminal activity). That is enough storage capacity to comfortably fit 36,000 cars or 863 million tins of baked beans. William Kremer, How Much Bigger Can Container Ships Get, BBC NEWS MAGAZINE (2013). If this Court created a new requirement for electronic searches, the Government could subject hundreds of boxes of documents in a massive cargo ship to suspicionless inspection, but must allow immunity to those same documents if they were stored electronically on a laptop computer. Such an arbitrary

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distinction is both absurd and contrary to the uniform protection afforded by the Fourth Amendment. Nonetheless, does the combination of these two factors (personal use and storage capacity) make a constitutionally significant difference? The answer is an emphatic no. While the privacy interests in a container certainly grow with its storage capacity, so too do the Governments interestsgreater storage capacity entails a larger potential threat to our borders. Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. United States v. Adjani, 452 F.3d 1140, 1152 (9th Cir. 2006). In addition to the greater potential threat, an increased storage capacity requires extra governmental resources to search the larger space. So if anything, the Governments interests grows at a greater rate than the privacy interests as the storage capacity of a container increases. All in all, it should be very clear that this Court should follow in the unanimous judgment of other courts and refuse to create a blanket requirement of reasonable suspicion for all border searches of computers. In addition, however, Defendant Crown not only protests what was searched (i.e. a computer), but also the manner by which the computer was searchedin particular, the use of a decryption program and the accessing of the deleted and ghost files. (R. 44). As for the use of the decryption program, the use of such programs is directly analogous to the breaking of physical locks on luggage. Both Customs and the TSA have had a long-standing and well-known practice of breaking physical locks on luggage and other closed containers to conduct suspicionless searches. 49 U.S.C. 44901 (e). Considering that locks of physical containers may be broken without suspicion and that computers are conceptual analogs for physical containers, there should be no additional requirement for breaking electronic locks either. This power is

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especially necessary when considering the fact that desktop passwords are increasingly becoming common practice for computers used for both personal and commercial purposes. In addition to the decryption, Crown also protests the accessing of deleted and ghost files (R. 45) and urges the adoption of the Ninth Circuits rule in Cotterman, which requires reasonable suspicion when the Government conducts a forensic examination of a laptop that the accesses deleted and ghost files. 709 F.3d at 965. Crown argues that citizens have a higher subjective expectation of privacy with respect to deleted files because they presumably believe that such files are destroyed or otherwise inaccessible. This argument is flawed. If Crown had subjective knowledge of their existence and knowingly brought them into the country, then those files clearly should be treated like any other file carried in a closed container. Otherwise, criminals can simply delete files to avoid inspection at the border and then recover those files after having cleared customseffectively creating a procedural loophole for criminal smugglers and terrorists. On the other hand, if Crown subjectively believed that the files were deleted and forever gone, then it cannot be said that he had a privacy interest in those files at all. Crown cannot have an expectation of privacy with respect to something that he does not believe to exist. Either way, the accessing of that data was proper. It is the duty of private individuals, not the Government, to properly dispose of incriminating materials that may be subject to search. Defendant Crown also charges that such a broad grant of authority to conduct such searches have the potential for abuse. It should be recognized, however, that while Customs agents process hundreds of thousands of travelers each day, the impact of laptop searches on the general population of travelers is fairly small. The most recent privacy impact assessment of electronic searches conducted by the Department of Homeland Security found that, between October 1, 2008 and August 11, 2009, Customs encountered more than 221 million travelers at

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our ports of entry. Mary Ellen Callahan, Privacy Issues in Border Searches of Electronic Devices, DATA PROTECTION LAW AND POLICY (2009). Yet, only around 1,000 laptop searches were performed in these instancesroughly one laptop search for every 442 jumbo jets full of 500 passengers each. Id. Of the 1,000 searches, just 46 were in-depth, meaning the search entailed anything more than merely powering up the computer. Id. Moreover, border agents are not free to undertake unfettered crime-fighting searches or an unregulated assault on citizens' private information. Cotterman 709 F.3d at 952. Both Congress and the Executive Branch have exercised the authority to restrict when and how border agents conduct searches. See United States v. Seljan, 547 F.3d 993, 1012 (9th Cir. 2008) (Callahan, J., concurring) (citing, e.g., 19 U.S.C. 1583; 19 C.F.R. 145.3(b)(c)); see also Yule Kim, Cong. Research Serv. RL34404, Border Searches of Laptop Computers and Other Electronic Storage Devices, 1314 (2009) (describing legislative proposals to limit border searches of electronic devices). Instead of trying to draw constitutionally arbitrary lines between the methods used to search computers, it would be far more prudent to leave those difficult decisions to the discretion of the officers in the field who confront a myriad of circumstances or at the very least, to politically accountable decision makers, rather than make them from the bench. Williams, 419 F.3d at 1034. C. In Any Case, the Search Was Supported By Reasonable Suspicion. Even assuming, arguendo, that reasonable suspicion was required, the District Court was correct in rejecting Defendant Crowns motion to suppress because the search of Defendant Crowns laptop computer was still supported by reasonable suspicion. Reasonable suspicion is a rather lenient test based on the totality of circumstances. United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973). A reasonable suspicion inquiry

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simply considers, after taking into account all the facts of a particular case, whether the border official ha[d] a reasonable basis on which to conduct the search. Irving, 452 F.3d at 124 (quoting Asbury, 586 F.2d 973, 97576 (2d Cir. 1978)). In assessing whether the circumstances surrounding a search amounted to reasonable suspicion, courts have deferred to the rational factual interpretations of border officials, who have training and on-the-ground experience. See Montoya de Hernandez, 473 U.S. at 542. In this case, Agent Malone testified to a number of observations which, taken together, provided him a reasonable basis for him to suspect that Defendant Crown was engaged in criminal activity. On the day that Crown arrived in the United States, JFK had serviced around 4,058,429 passengers just that month. April 2013 Traffic Report, THE PORT AUTHORITY OF NEW YORK & NEW JERSEY. Each of these passengers were required to undergo the minimum security checks mandated by the TSA and Customs and of these nearly 4 million passengers, 2,039,148 passengers were flying international and were thus required to clear Customs. Id. Because of limited resources, TSA and Customs agents cannot conduct searches that go beyond what is minimally required for the vast majority of these passengers. However, an occasion may arise in which a particular passenger raises the suspicions of TSA and Customs agents. This case arises out of such an occasion. While on duty that evening at JFK, Customs Agent Eddie Malone spotted Defendant Crowns accomplice Knutzhorn wearing sunglassesdespite the fact that it was well into the evening and Knutzhorn was wearing his sunglasses while indoors. (R. 41). Moreover, Agent Eddie Malone noticed that the individual was fidgeting and nervous. (R. 41). Upon arriving, passengers are required to answer basic questions from Customs agents regarding their trip and Agent Malone continued to observe Knutzhorn while Knutzhorn answered questions. Agent

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Malone noted that Knutzhorn, a naturalized United States Citizen, seemed to speak English well and there did not seem to be a language barrier issue. (R. 42). Yet, the suspect seemed to have an unusual difficulty in giving a straight answer to rather simple questions. (R. 42). Throughout this entire period, Knutzhorn was acting nervously, shifting his weight from one foot to the other. (R. 42). Taking into account Knutzhorns squirming, nervousness, and unusual behavior, Agent Malone already had some basis for reasonable suspicion. United States v. Ehrmann, 421 F.3d 774, 78081 (8th Cir. 2005) (a suspects squirming and nervousness is a factor in support of a finding of reasonable suspicion). When asked about his traveling companions, Knutzhorn indicated that Defendant Crown was traveling with him. (R. 42). Agent Malone immediately shot a glance towards Crown and happened to catch Crown giving his accomplice Knutzhorn a warning look. (R. 43). Becoming increasingly suspicious, Agent Malone ran a criminal background check on both suspects and an FBI Identification Record indicated that Defendant Crown had a prior conviction for wire fraud. (R. 43). The Tenth Circuit has remarked that [i]n conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus. United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010) (emphasis added), quoting United States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005). Wire fraud involves the use of a fraudulent scheme to intentionally deprive another of property through the use of mail, telephone, or computerized communication. 18 U.S.C. 1343. According to the Federal Trade Commission, nearly half of the consumer fraud complaints which provided the method of contact used by the perpetrators of the fraud reported that the perpetrators used computerized communications. Consumer Sentinel Network Data Book for January - December 2013, UNITED STATES FEDERAL TRADE COMMISSION (2014). Thus, in light

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of this factual context, Defendant Crowns criminal background, and the generally suspicious conduct of both passengers, Agent Malone had an objectively reasonable basis to search through the content of Defendant Crowns laptop computer. Intriguingly, Agent Malone found that nearly all the files on the computer, including access to the desktop itself, were unprotected by a passwordwith just a single file, titled Work, protected by an encryption of some sort. (R. 43). When asked about its contents, Defendant Crown replied that the contents were confidential business files and flat-out refused to allow Agent Malone to verify that what Crown alleged was even true. (R. 44). While perhaps innocent in itself, the circumstances surrounding the encrypted file, in combination with other factors, may have increased the level of suspicion - especially considering that most wire fraud involves computerized communications, only one file in the entire computer was encrypted, and the Defendant flat out refused to even allow Agent Malone to simply verify that they were in fact merely business files. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (several factors which by themselves are consistent with innocent travel may, taken together, amount to reasonable suspicion). After Crown refused to cooperate, Agent Malone attempted to use a decryption program to bypass the encryption on the file. (R. 44). Although Agent Malone has a degree and extensive training in computer science, Agent Malones decryption program had absolutely no effect on the files encryption, which was awfully well protected for a so-called business file. (R. 44). When taking into account the totality of the circumstances, the presence of such powerful electronic protection used in a nongovernmental context reasonably provided Agent Malone a basis to detain the computer until superior decryption technology could be utilized to verify the files contents. Montoya de Hernandez, 473 U.S. at 531.

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In Asbury, the Second Circuit also identified twelve specific factors that have been deemed significant in evaluating whether law enforcement officers have a reasonable basis to suspect possible criminal activity. Asbury, 586 F.2d at 976. Of course, the Second Circuit noted the need to look for a combination of the foregoing factors rather than upon any of them standing alone. Id. at 976. Those factors are (1) excessive nervousness, (2) unusual conduct, (3) an informant's tip, (4) computerized information showing pertinent criminal propensities, (5) loose-fitting or bulky clothing, (6) an itinerary suggestive of wrongdoing, (7) discovery of incriminating matter during routine searches, (8) lack of employment or a claim of self-employment, (9) needle marks or other indications of drug addiction, (10) information derived from the search or conduct of a traveling companion, (11) inadequate luggage, and (12) evasive or contradictory answers. Id. at 976. In Asbury, the Second Circuit found that a search was supported by reasonable suspicion on the basis that Asbury and her companion had a suspicious itinerary (Thailand, a well-known narcotics source), wore loose-fitting clothing, had suspicious items found on their person (packets of money), and that border officials had received word from a source that Asbury and her companion were carrying contraband. Asbury, 596 F.2d at 977. In Irving, on the basis of the Asbury factors, the Court found that a search was supported by reasonable suspicion on the basis that Irving had a suspicious itinerary (Mexico, a country notorious for child prostitution), a prior criminal history, and been the subject of a criminal investigation. Irving, 452 F.3d at 124. In total, three of the twelve potential Asbury factors were listed. In the present case, Agent Malone conducted a search of the computer after he found five of the twelve Asbury factors. Those factors were excessive nervousness, unusual conduct,

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computerized information showing pertinent criminal propensities, an itinerary suggestive of wrongdoing, and information derived from the search or conduct of a traveling companion: 1. Excessive Nervousness of a Traveling Companion a. Defendant Crowns accomplice Knutzhorn was observed acting nervously, shifting his weight from one foot to the other. (R. 42). b. Despite being a United States citizen and resident, Knutzhorn exhibited great difficulty and anxiety in answering basic questions regarding his trip outside the United States. (R. 42). 2. Unusual Behavior of both Suspects a. Agent Malone observed that Knutzhorn was wearing sunglasses indoors and in the middle of the night. (R. 42). b. As Knutzhorn continued to have difficulty answering questions, Agent Malone witnessed Crown giving a stern warning look to his accomplice Knutzhorn. (R. 42). 3. Computerized Information Showing Pertinent Criminal Propensities a. Agent Malone ran a criminal background check on both suspects and an FBI Identification Record indicated that Defendant Crown had a prior conviction for wire fraud. (R. 43). 4. Itinerary Suggestive of Wrongdoing a. Knutzhorn informed Customs that Defendant Crown was his traveling companion and that they had traveled from Amsterdam, a country that has legalized a number of illicit controlled substances for recreational use. (R. 42). It is absolutely clear that in light of the five Asbury factors present here and the suspicious circumstances surrounding the encrypted file, the Government had reasonable suspicion supporting both the initial search and the subsequent inspection of Defendant Crowns computer. Therefore, even assuming that reasonable suspicion is required, the District Court was correct in denying Defendant Crowns motion to suppress as the search of the laptop was nevertheless supported by reasonable suspicion. II. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS DENIAL OF DEFENDANT KNUTZHORNS MOTION TO SUPPRESS AS DEFENDANT KNUTZHORN WAS NOT IN POLICE CUSTODY AT THE TIME OF THE INITIAL QUESTIONING AND THE POLICE DID NOT DELIBERATELY ENGAGE IN A TWOSTEP INTERROGATION. The standard of review for evaluating the District Courts ruling on a suppression motion is clear error as to the District Courts factual findings, and de novo as to questions of law. E.g. United 35

States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004). The evidentiary record is reviewed in the light most favorable to the government. E.g. United States v. Rosa, 626 F.3d 56, 61 (2d Cir. 2010). A. The Questioning that Occurred on the Premises of Defendant Knutzhorns Home Was General On-The-Scene Questioning That Did Not Require That Defendant Knutzhorn Be Mirandized And a Reasonable Person Under the Same Circumstances Would Not Perceive the Questioning as Custodial Interrogation. Miranda v. Arizona, 384 U.S. 436 (1966), held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any particular way. Id. at 444. Miranda goes on to provide that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. Id. at 477. The Supreme Court has gone on to expand on what constitutes custodial interrogation in several cases. Oregon v. Mathiason, 429 U.S. 492 (1977), held that Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him in custody. Id. at 495. California v. Behler, 463 U.S. 1121 (1983), held that for the determination of whether a suspect is in custody for purposes of receiving of Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. at 1125. Berkemer v. McCarty, 468 U.S. 420 (1984), held that a policeman's unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect's

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position would have understood his situation. Id. at 442. Stansbury v. California, 511 U.S. 318 (1994), restates this rule as the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Id. at 323. Thompson v. Keohane, 516 U.S. 99 (1995), provided the following description of the Miranda custody test: two discrete inquiries are essential to the determination of whether an individual is in subject to custodial interrogation; first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. at 112. The Supreme Court reaffirmed the two discrete inquiries test of Keohane in Yarborough v. Alvarado, 541 U.S. 652 (2004), and in J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011). Howes v. Fields, 132 S.Ct. 1181 (2012), held that determining whether an individual's freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. We have decline[d] to accord talismanic power to the freedom-of-movement inquiry, Berkemer, supra, at 437, 104 S.Ct. 3138, and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. Our cases make clear ... that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody. Id. at 1190. Fields goes on to hold that when a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. Id. at 1192. The Second Circuit applied the two-prong custody analysis in Tankleff v. Senkowski, 135 F.3d 235, 243 (1998), holding that in determining whether a suspect was in custody, we look at

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all the circumstances surrounding the interrogation. The relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Id. The general questioning of citizens in the fact-finding process that occurred at Knutzhorn family home, and to which Miranda does not apply, did not amount to a situation that a reasonable person in the same circumstances as Knutzhorn would perceive to be custodial interrogation. Thompson v. Keohane, 516 U.S. 99 (1995), provided an objective test to resolve the ultimate inquiry of whether there [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. at 1190. This test consists of two discrete steps. The first step is asking the question what were the circumstances surrounding the interrogation? Id. at 1190. Tankleff v. Senkowski, 135 F.3d 235 (1998), provides that we look at all the circumstances surrounding the interrogation Id. at 1190 and this is consistent with numerous Supreme Court decisions. See California v. Behler, 463 U.S. 1121 (1983); Berkemer v. McCarty, 468 U.S. 420 (1984); Stansbury v. California, 511 U.S. 318 (1994); Yarborough v. Alvarado, 541 U.S. 652 (2004); J.D.B v. North Carolina, 131 S.Ct. 2394 (2011). The second question in the Thompson v. Keohane two step inquiry is whether given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Id. at 1190. A reasonable person in Mr. Knutzhorns same circumstance would not perceive themselves as being in police custody during the first round of questioning that Mr. Knutzhorn experienced outside his family home. The Keohane test shows that the first statement was obtained during general questioning of citizens in the fact-finding process that does not require Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 477 (1966). Miranda further states that volunteered statements of any kind are not barred by the

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Fifth Amendment and their admissibility is not affected by our holding today. Id. at 478. This is exactly what occurred at Knutzhorna home on April 10, 2013. (R. 28). The officers conducted general on-the-scene questioning resulting in volunteered statements under circumstances that did not require that Knutzhorn be Mirandized. After his voluntary statement of the Vermeer, the officers Mirandized Knutzhorn and took him into custody. (R. 31). The following examination of the relevant circumstances surrounding the questioning that took place on the premises of Knutzhorns home that shows that it was the type of general on-the-scene questioning that did not require that Knutzhorn be Mirandized. Furthermore, a reasonable person in Knutzhorns situation would not perceive himself to be in custodial interrogation. i. The Questioning Occurred While Defendant Knutzhorn Was in a Public Space and In the Presence of Non-Police Witness, Eliminating the Coercive Effects of Isolation. A major concern in Miranda is the coercive effect of isolation on an individual where questioning takes place incommunicado, cut off from the outside world. See Miranda v. Arizona, 384 U.S. at 444. This concern is eliminated by the fact that the questioning of Knutzhorn occurred out in the very public area on the property in front of Knutzhorns residence. (R. 30). The questioning clearly was not incommunicado or isolated since multiple individuals who were not police officers and whose presence Knutzhorn was aware of were present on the scene. These individuals include four EMTs (R. 28) and Knutzhorns daughter, whose presence Knutzhorn was aware of (R. 64). An analogous situation to such public questioning where others may be present is when an individual is pulled over for a traffic violation. In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court found questioning of an individual who had been detained during a traffic stop did not constitute custodial interrogation despite the fact that a uniformed officer had detained an individual and the coercive effect of the possibility of a

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citation because the questioning took place publically on the roadside where it was not even certain that individuals were witnessing the questioning, as was the case for Knutzhorn. (R. 28, 64). ii. The Questioning Occurred While Defendant Knutzhorn Was Near His Home, One of the Least Coercive Physical Environments, that Eliminates the Concern of the Coercive Environment of a Police Station. Another of the largest concerns of the Miranda decision was the coercive effect that a police station has on an individual while they are being questioned. All four of the cases being reviewed in Miranda were in regard to questioning that took place in the coercive environment of a police station. See Miranda v. Arizona, 384 U.S. 436, 400 (1966). In contrast, Knutzhorn was questioned while outside his family residence (R. 30), a location that would comfort the reasonable person and put them at ease, completely eliminating any of the concern that Miranda and subsequent cases had with the coercive effect of being inside of a police station. See Miranda v. Arizona, 384 U.S. 436 (1966). In United States v. Titemore, 437 F.3d 251 (2nd Cir. 2006), it was found that Miranda warnings were not required when an officer asked the defendant several questions while they were just outside of the defendants home Id. at 260. While the isolation of an individual that Miranda concerned itself with would certainly portray an atmosphere of police custody to a reasonable person, a reasonable person in a public place who is in the presence of non-officer personnel such as EMTs and especially family members, would eliminate the critical role of isolation in creating an environment equal to custodial interrogation. When the public nature of the questioning is combined with the fact that the questioning took place at Knutzhorns home, the two major concerns of Miranda with police coercion of isolation of an individual and the coercive environment of a police station have been

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completely eliminated, which would lead a reasonable person in Knutzhorns situation to believe that they were not in police custody. iii. The EMTs Medical Precaution of Securing Defendant Knutzhorn to a Backboard Would Lead a Reasonable Person to Believe They Were Receiving Medical Care. In Howes v. Fields, 132 S.Ct. 1181 (2012), the Supreme Court stated that the fact that an individuals freedom of movement had been restrained was not some sort of talismanic power that meant that an individual was in police custody, but rather that a lack of freedom of movement was a necessary but not a sufficient condition for Miranda custody. Id. at 1190. While the Government acknowledges that Knutzhorn was physically restrained during the questioning that occurred out in the public in front of Knutzhorns home, Fields demonstrated that mere physical restraint is not enough. The restraint must present the same inherently coercive pressures as the type of station house questioning at issue in Miranda. Id. at 1190. As discussed above the restraints that are characteristic of station house questioning are the coercive effects of the police station itself and isolation from the outside world are both completely absent from the questioning that occurred at Knutzhorns home. The police officers took no action towards restraining Knutzhorn whatsoever until after Knutzhorns un-coerced confession and had been Mirandized and formally arrested. (R. 31). Furthermore it was Knutzhorns own actions of choking on an olive and falling off his balcony that created the necessity for the EMTs to place the defendant on a backboard. (R. 31). The officers on the scene administered medical treatment to the unconscious Knutzhorn before the arrival of the paramedics who took over the medical treatment. It was the paramedics who restricted Knutzhorns movement, not the officers. (R. 54). A reasonable person in Knutzhorns situation would comprehend that they had been strapped down and given oxygen as a medical treatment. Receiving this medical treatment in combination with the public setting near Knutzhorns home under which the first statement was 41

given combine in a way that would naturally lead a reasonable person to believe that they were not in police custody. iv. Knutzhorn Was Questioned For a Very Short Period of Time Before Making His Statement. After Knutzhorn regained consciousness, Officer Paretti asked one of the EMTs on the scene if he could speak with Knutzhorn and the EMT granted Officer Paretti permission. (R. 57). The same EMT who allowed Officer Paretti to speak with Knutzhorn, James Janoff, testified at an evidentiary hearing as an expert witness. Mr. Janoff stated as a routine matter, I obtain medical histories from conscious patients. (R. 61). Asking a conscious individual a few questions to obtain information about them is a, as Mr. Janoff stated, a routine matter, and this is what Officer Paretti did. Officer Paretti asked Knutzhorn a few brief questions in a conversation that lasted a few minutes at the most. (R. 55). Knutzhorn voluntarily said the Vermeer while Officer Paretti asked him about his involvement with Thomas Crown. (R. 55). This sort of incredibly brief conversation is in no way comparable to the coercive questioning of individuals described in multiple cases that goes on for hours at a time. See Yarborough v. Alvarado, 541 U.S. 652 (2004) (defendant interviewed for about two hours and was not considered to be in custody). v. The Number of Officers On the Scene Was to Enable the Officers Was to Account For the Unpredictability of Even The Most Routine Law Enforcement Situations, Such as Fact Finding Through Speaking with Possible Witnesses Such as Defendant Knutzhorn, and the Number of Officers Present Allowed the Officers to Save Defendant Knutzhorns Life. The number of officers is another factor to consider in determining if a reasonable person under the same circumstances as Knutzhorn would have perceived themselves to have been in police custody. When the officers first arrived at Knutzhorns home, four officers arrived in two separate cars to conduct a routine questioning of an individual who may have had information 42

regarding the smuggling activities of Thomas Crown. (R. 28). The unpredictability of even the most routine law enforcement situations, such as the fact gathering that the officers planned to do at Knutzhorns home can often lead to unpredictable situations where multiple officers are needed on the scene. The events that occurred at Knutzhorns home on April 10, 2013 exemplify this need for multiple officers. An officer was able to administer crucial medical attention after Knutzhorn had fallen off his balcony, including the jaw thrusting maneuver to clear Knutzhorns blocked airway of the olive Knutzhorn had choked on. (R. 53). Luckily for Knutzhorn, the officers had arrived with four officers, allowing the single officer to administer this vital medical attention while the other three struggled to keep Knutzhorns daughter from interfering with the emergency medical care Knutzhorn was receiving. (R. 63). If not for the three officers that restrained her, Knutzhorns daughter would likely have interfered with the medical care Knutzhorn was receiving which could have endangered Knutzhorns life. Having four officers go out for the routine fact gathering at Knutzhorns home allowed the officers to effectively deal with an unforeseen emergency and to administer effective treatment that prevented Knutzhorn from choking to death. After Knutzhorn received further medical attention from the EMTs Knutzhorn awoke to a group of officers and EMTs. (R. 28). Additional officers than arrived on the scene in order to assist in calming Knutzhorns family, however Knutzhorn has not indicated that he was ever aware of the additional officers on the scene. When the additional officers arrived at Knutzhorns home, one of their cars parked in a way so as to inadvertently block the ambulance from leaving. As soon as the EMTs brought this to Officer Parettis attention, he immediately dealt with the situation and had the vehicle moved. (R. 54). In sum, the four officers who initially arrived on the scene were the number needed to respond to the unforeseen developments of routine fact

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gathering and additional officers that arrived were necessary to respond to a developing situation. A reasonable person in these same circumstances as Knutzhorn would not feel as though they were in custody after, especially after several of the officers saved their life. B. The Confession That Defendant Knutzhorn Gave to the Officers at the Beth Israel Medical Center Is Admissible as Evidence Against Him Because It Was Not the Result of a Deliberate Two-Step Interrogation Process on Behalf of the FBI officers That Obtained Defendant Knutzhorns Confession. Oregon v. Elstad, 470 U.S. 298 (1985), stated that in the case of an un-coerced confession by a suspect once they are in police custody the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements A suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Id. at 318. Missouri v. Seibert, 542 U.S. 600 (2004), regards the admissibility of an in custody suspects second statement in a situation where the authorities deliberately gave no warnings of the rights to silence and counsel until interrogation has produced a confession. The interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. Id. at 604. In the event of a two-stage interview where the first statements were made before the suspect was Mirandized, the plurality in Seibert laid out a five factor test to determine whether Miranda warnings delivered between the two rounds of questioning is effective enough to overcome the negative impact on the confession given prior to the suspect being Mirandized on the suspects understanding of their Miranda rights. These five factors were 1) the completeness and detail of the questions and answers in the first round of interrogation, 2) the overlapping content of the two statements, 3) the timing and setting of the first and the

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second interrogation, 4) the continuity of police personnel, and 5) the degree to which the interrogator's questions treated the second round as continuous with the first. Id. at 615. In his concurrence with the plurality, Justice Kennedy wrote that the holding of Seibert should be limited to infrequent cases where a deliberate two-step interrogation process was used to undermine the Miranda warning. Seibert at 622. Kennedy reiterated the admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. Id. 622. In United States v. Carter, 489 F.3d 528 (2d Cir. 2007), the Second Circuit adopted Justice Kennedys narrower view of the Seibert test, holding Seibert lays out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning confession. Id. at 536 and that Oregon v. Elstad, 470 U.S. 298 (1985), continued to be the governing precedent in cases where a deliberate two-step interrogation process had not been used. To determine deliberateness, the Second Circuit has instructed that a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness. United States v. Capers, 627 F.3d 470, 479 (2nd Cir. 2010). Capers goes on to hold that hold that the government must meet its burden of disproving the deliberate use of a two-step interrogation technique by a preponderance of the evidence. Id. at 480. Capers further held that the objective inquiry into whether an interrogation was deliberate should be guided by the five factors laid out by the Seibert plurality and that the government bears the burden by proving by a preponderance of the evidence that its officers did not use a deliberate two-step interrogation process. Id. at 480.

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i. The First Round of Questioning Was Incomplete and Lacked Specificity and Detail, Strongly Indicating This not a Deliberate Two-Step Interrogation Process. The first factor in the Seibert test is the completeness and detail of the questions and answers in the first round of interrogation. Id. at 615. The first interrogation was incredibly brief and only a few general questions were asked about the relationship between defendants Crown and Knutzhorn, the purpose of their business trip to the Netherlands, whether Knutzhorn liked art, and finally if Knutzhorn knew anything about a stolen painting. (R. 55). No accusatory questions were posed to Knutzhorn and he was not asked for any specific details about a particular painting or if he had stolen a painting. This becomes even clearer when the questions of the first round of interrogation are compared to the accusatory tone of the second round of questioning which included statements made by the officers such as We have a lot of information from your friends computer and Crown isnt a particularly good friend, is he; making you do things like this. Did he pay you? (R. 56). Knutzhorns first statement consisted only of the The Vermeer (R. 55), which was only a two word statement that provided no information about Knutzhorns involvement or the involvement of Mr. Crown. In sum the questions during the first interrogation were incomplete, undetailed, and lacked specificity, strongly indicating that this was not a deliberate two-step interrogation process. ii. The Content of the First and Second Statements Minimally Overlapped, with the Second Confession Providing Far More Detail than the First. The second factor in the Missouri v. Seibert deliberateness test is the overlapping content of the two statements. Id. at 615. When comparing the first and second statements of Knutzhorn we see that there is minimal overlap between the two and that the second statement provides far more information. Knutzhorns first statement consisted solely of The Vermeer, while the second statement provided far more information. (R. 55). During the second statement

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Knutzhorn said I-I helped Tom (Mr. Crown) smuggle the Vermeer. It was him and I. Tom and I. That was the purpose of our trip. Im sorry. (R. 56). The only overlap between the two statements is The Vermeer. The second statement provides far more detail about Knutzhorn and Crowns guilt and their trip to the Netherlands. This lack of overlap between the two confessions points away from the deliberate use of a deliberate two-step interrogation process. iii. The Settings of the First and Second Rounds of Interrogation Were Completely Different From Each Other, Indicating That This was Not a Deliberate Two-Step Interrogation Process. The third factor in the Seibert deliberateness test is the timing and setting of the first and the second interrogation. Id. at 615. In regards to the statements made by Knutzhorn, the settings for the first and second confession were completely different with the first interrogation occurring in front of Knutzhorns home and the second occurring at the hospital which was interrupted by the time it took for Knutzhorn to be transported to the hospital and the twenty minutes that the doctors were with Knutzhorn before they allowed the officers to speak with Knutzhorn. (R. 54-56). This differs greatly from the exact same setting that occur in a deliberate two-step interrogation process, such as in Missouri v. Seibert where both rounds of interrogation took place within the same interrogation room in a police station. Id. at 605. The difference in setting between the two rounds of questioning as well as the extended break between the two rounds clearly indicate that this was not a deliberate two-step interrogation process. iv. The Reduction in the Number of Officers Reduces the Continuity of Police Personnel Between the First and Second Interrogation. The final two factors of the deliberateness test are the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. Seibert at 615. While its true that Officer Paretti questioned Knutzhorn during the first round of questioning, the number of officers during the first round of questioning greatly differed 47

from the number of officers in the second round of questioning. During the first round, eight officers were present while during the second round (R. 62), only two were present (R. 56), greatly breaking up the continuity of police personnel. In regards to whether the interrogators questions treated the second round as continuous to the first, the large lapse of time between the first and second round of questioning that lasted for the duration of the ambulance ride and the twenty minutes when doctors would not permit the officers to speak with Knutzhorn indicates that the officers did not consider the second round of questioning as a continuation of the first. When the five objective Seibert factors are look at together, they clearly indicate that the police did not engage in a deliberate two-step interrogation process. The incompleteness and lack of specificity and details at the first round of questioning, the lack of overlap between the two confessions, the different settings for each round of questioning, the reduction in the number of officers present from the first to second round, and the lapse of time between the two rounds of questioning all indicate that this was not a deliberate two step interrogation process. However out analysis also requires under United States v. Capers, 627 F.3d 470 (2nd Cir. 2010), that the subjective circumstances be examined and this clearly shows that it was never the intent of the officers to engage in a deliberate two step interrogation process or withhold Miranda rights from Knutzhorn. v. The Subjective Intent of the Officers Clearly Shows That They Did Not Intend to Engage In a Deliberate Two-Step Interrogation Process or to Withhold Miranda Rights From Defendant Knutzhorn. The officers who obtained the first and second confession from Knutzhorn never intended to engage in a deliberate two-step interrogation process. When the officers first went to Knutzhorns home they did not suspect Knutzhorn of any wrongdoing and were going there to ask him some questions about an ongoing investigation regarding Defendant Crown. (R. 53).

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This contrasts sharply to cases where it has been found that a two step interrogation process were used. For example in United States v. Capers, 627 F.3d 470 (2nd Cir. 2010), the officers already suspected the individual of committing a crime and set up an entire sting operation specifically targeted to catch him in the act. Id. at 472. In Knutzhorns case the overall goal of general fact gathering of the officers was momentarily suspended by the fear of the officers that Knutzhorn had tried to commit suicide. (R. 53), but once it was clear that Knutzhorn had been stabilized, thanks in no small part to the quick action of the officers on scene, the officers resumed their general fact gathering. (R. 55). The officers never intended to put Knutzhorn in police custody and would not have bothered to follow him to the hospital unless he had confessed. (R. 59). Officer Paretti testified that it was not his intent to withhold the Miranda warning a necessary part of the deliberate two-step interrogation process that is lacking in this case. (R. 60). As soon as the officers did place Knutzhorn in police custody, Knutzhorn was promptly Mirandized. (R. 28). Furthermore, just before the second round of questioning commenced, Knutzhorn indicated that he was aware of his right to remain silent and the officer affirmed that Knutzhorn had this right. (R. 55). Knutzhorn then indicated stated that I will do this and after a brief silence, Knutzhorn answered the officers questions. Berghuis v. Thompkins, 560 U.S. 370 (2010), makes it clear that an individuals silence, even for a span as long as two hours and fortyfive minutes, is not an invocation of ones right to remain silent. Id. at 387. Once the subjective evidence regarding the intent of the officers in combined with the analysis of the five factor Seibert deliberateness test, it becomes abundantly clear that the officers did not engage in a deliberate two-step interrogation process and Knutzhorns statement was a voluntary confession.

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CONCLUSION The District Court was correct in denying Defendant Crowns motion to suppress incriminating evidence obtained from a border search of his laptop. The search of Crowns was clearly conducted at the border or its functional equivalent. Moreover, a special exception to the border search doctrine should not be created for searches of computers or the manner by which Crowns computer was searched. Lastly, even assuming that reasonable suspicion was required, the search was nonetheless supported by reasonable suspicion. The District Court was also correct in denying Defendant Knutzhorns motion to suppress statements he made to police officers at two different incidents. The first statement given by Knutzhorn was not given while Knutzhorn was in police custody and was therefore properly admitted as evidence by the District Court. Knutzhorn had not been placed in police custody at the time the statement was given nor was Knutzhorn subject to conditions that a reasonable person would not have perceived as custodial interrogation. In regards to the second statement given by Knutzhorn, he had been properly Mirandized before he was questioned and then waived his Miranda rights before speaking with the officers. The second statement was properly attained and was not the result of a deliberate two-step interrogation process that undermined the effectiveness of the Miranda warnings, even when assuming for the sake of argument that Knutzhorn was in custody when he gave his first incriminating statement. For these reasons, this Court should AFFIRM the decision of the District Court below. Respectfully, _________________________________ Timothy T. Kim _________________________________ David Bowen __________________ Date __________________ Date

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