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Laptop Evidence Suppressed, Feds Drop Criminal Case Against Businessman

18 Aug

Federal prosecutors in Washington have dropped the criminal case against a Korean businessman charged with violating U.S. economic sanctions after a federal judge suppressed evidence seized from his laptop.

U.S. District Judge Amy Berman Jackson ruled in May that prosecutors could not use “incriminating” evidence they discovered after seizing defendant Jae Shik Kim’s laptop at the Los Angeles International Airport. She rejected the government’s argument that a laptop was like any other “container” that could be searched without a warrant at the border.

“Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane,” Jackson wrote at the time.

The government considered an appeal, but prosecutors notified the U.S. Court of Appeals for the D.C. Circuit on Aug. 11 that they would not challenge Jackson’s decision. On Tuesday, prosecutors in the U.S. attorney’s office in Washington asked Jackson to dismiss the criminal case against Kim. With the laptop evidence suppressed, they said, “the government is unable to continue prosecuting this matter.”

One of Kim’s lawyers, Jeff Ifrah of Ifrah Law in Washington, said the decision to drop the appeal made sense for the government. If the D.C. Circuit affirmed Jackson’s decision, it could have led to new case law that restricted the government’s ability to conduct warrantless searches at airports and other border areas.

“Factually, this was not the case they wanted to present to the D.C. Circuit,” Ifrah said. “It could have resulted in some bad precedent about the type of searches that are going on every day at airports. I think they don’t want to be responsible for having a circuit court of appeals rule that those searches are illegal.”

A spokesman for the U.S. attorney’s office declined to comment.

Kim was returning home to Korea from the United States when he was stopped at the Los Angeles airport by a U.S. Department of Homeland Security special agent. The department suspected Kim was involved in a scheme to export products to Iran in violation of U.S. sanctions. The agent seized Kim’s laptop—the government argued it was a permissible “border search”—and sent it to a separate facility for a forensic examination.

In her order suppressing the laptop evidence, Jackson wrote:

The imaging and search of the entire contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable.

Ifrah said he was pleased that prosecutors “decided to do the right thing” in dismissing the case.

“What happened in this case was clearly a violation of the Fourth Amendment,” Ifrah said. “It doesn’t take a rocket scientist to know that a laptop is not a suitcase.”

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