Ninth Circuit Says Warrantless Device Searches At The Border Must Be Limited To Searches For Contraband

from the another-small-addition-to-the-Ninth's-rights-restoration-project dept

The Ninth Circuit has given back a bit more of the Fourth Amendment to American citizens. Again.

Supposedly, we're so very much in need of national security, hardly anyone is allowed to avail themselves of their surely misnamed "rights" within 100 miles of our borders. This includes things like international airports as well, so the "Constitution-free zone" swallows up a large portion of our nation's population

In 2013, the Ninth Circuit Court of Appeals ruled the Fourth Amendment still applies at the border, despite the US government's protestations. The government can still get away with suspicionless searches at the border, but they have to be cursory, not exploratory. That case -- US v. Cotterman -- resulted in a finding that deeper searches of electronic device, like Cotterman's laptop, needed reasonable suspicion. (The court also helpfully noted that the existence of password-protected files is not enough to meet that bar.)

Given the vast amount of information travelers carry on them at all times in their multiple electronic devices, it seems like this reasonable suspicion standard should be the minimum expected. We're not quite up to a warrant requirement, but we're getting closer. This recent decision [PDF] by the Appeals Court relies on its Cotterman precedent to find the same standard applies to cellphones -- and clarifies what exactly that standard is.

In this case, a man arrested at a border crossing for trafficking drugs challenged the evidence found on his phone. After Border Patrol agents found cocaine concealed in a spare tire underneath his truck, the agents decided to search his phone. The man, Miguel Cano, claimed he was crossing the border visit his family in Los Angeles. (Cano is a US citizen who recently moved to Tijuana, Mexico.)

Cano claimed he knew nothing about the drugs stashed in the back of his vehicle. The agents decided to take a deep dive into his phone using Cellebrite software, which pulled text messages, contacts, call logs, and application data from Cano's phone. This was apparently done because the cursory search -- the one still fully protected by the border exception -- failed to turn up anything interesting to the Border Patrol officers.

This is a search too far, the court says. Referring to its 2013 decision on device searches, the Appeals Court fills in some blanks from its previous ruling to give the government explicit rules on suspicionless device searches.

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), we conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. We clarify Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

In this case, the agents may have felt the phone contained evidence of drug smuggling. But if that's what they felt, they needed to get a warrant. If they want to perform forensic searches of phones without a warrant, they need to be able to show they believe the device itself contains contraband. In a case where the contraband is 30 kg of cocaine stashed in a spare tire, the likelihood of finding more drugs by scraping a phone for data is zero.

The court notes that the government can still perform forensic device searches without a warrant because some data is contraband, like child porn. A cursory view of the phone's contents is sort of like looking into a suitcase. Anything deeper than that, though, needs to be justified by reasonable suspicion. If it wants to search for evidence only, it looks like the government will probably need a warrant. The court does not enact a warrant requirement, however. It defers to the government's long-running insistence that border security trumps the Fourth Amendment.

But the court does head off one of the government's worst arguments: that it should be allowed to search all devices for evidence of contraband, rather than be limited solely to contraband.

Does the proper scope of a border search include the power to search for evidence of contraband that is not present at the border? Or, put differently, can border agents conduct a warrantless search for evidence of past or future border-related crimes? We think that the answer must be “no.”

This should head off a few Border Patrol fishing expeditions, if and when this decision finally trickles down to California border crossings. As the court points out, finding otherwise would allow the border search exception to bypass the Ninth's earlier decision on device searches, as well as the additional constraints imposed by the Supreme Court's Riley ruling.

And the Border Patrol officers can't salvage this search with the good faith exception. The government's search powers were limited by the Appeals Court's 2013 decision. That the government chose to believe that ruling only applied to laptops is on the government.

The government points to Cotterman as support for the good faith of the officials. We fail to see how border officials could believe that Cotterman was “binding appellate precedent” authorizing their search. Although we have concluded that Cotterman is still good law after Riley, the officials could not rely on Cotterman to justify a search for evidence; Cotterman was a search for contraband that the government has a right to seize at the border. Here, the officials’ search was objectively tied only to proving their case against Cano and finding evidence of future crimes. Searching for evidence and searching for contraband are not the same thing.

With that, the evidence pulled from Cano's phone is gone, along with his conviction. And there's a bit more Fourth to go around in the far western reaches of this nation -- home to plenty of border crossings.

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Filed Under: 4th amendment, 9th circuit, border searches, contraband