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Cell Phone Border Searches Limited To Contraband

  • August 30, 2019
  • Clayton Rice, Q.C.

On July 25, 2016, Miguel Cano arrived at the San Ysidro port of entry to the United States from Tijuana, Mexico. He was sent to secondary inspection by officials of the U.S. Customs and Border Protection Agency (CBP) because of a random computer referral. A narcotic-detecting dog indicated his vehicle’s spare tire where agents found fourteen kilograms of cocaine. Here’s the story.

1. The Digital Search

Cano was arrested and a CBP agent seized his cell phone. The agent manually reviewed the cell phone and saw a lengthy call log but no text messages. The agent later said the purpose of the manual search was “to find some brief investigative leads in the current case” and “to see if there’s evidence of other things coming across the border.” After a second manual search, a “logical download” was completed using Cellebrite software. A Cellebrite search enables access to text messages, contacts, call logs, media and application data.

Cano waived his Miranda rights and told the agent he was headed to a carpet store in Chula Vista looking for work. He said he didn’t have a clue about the cocaine in the tire. He wasn’t able to give the agent the name or address of the store. The Cellebrite results showed that he had not sent any text messages and the numbers in the call log did not correspond to carpet stores in San Diego.

Cano was indicted for importing cocaine and moved to suppress the evidence obtained by the warrantless searches of his cell phone. The district court denied the motion ruling that the manual searches and the Cellebrite download were valid border searches. Cano was convicted. He appealed.

2. The Cotterman Rule

Border searches are a recognized exception to the warrant requirement under the Fourth Amendment to the Constitution of the United States. Routine border searches typically do not require probable cause or even particularized suspicion. They are “reasonable simply by virtue of the fact they occur at the border” grounded in “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” [See e.g., US v Ramsey, 431 US 606, 616 (1977); and, Almeida-Sanchez v US, 413 US 266, 272 (1973)]

But, the legal landscape regarding intrusive border searches of digital devices is gradually changing.

On April 6, 2007, Howard Cotterman and his wife were driving home to the United States from Mexico when they arrived at the Lukeville, Arizona, port of entry. Border agents were aware that he had convictions for sexual conduct with children. They conducted a brief search of his laptop and digital cameras. However, the computers contained password-protected files. The agents seized the computers and a forensic examination of the hard drives revealed hundreds of images of child pornography. The question arose whether the forensic search violated the Fourth Amendment because it was conducted without probable cause or reasonable suspicion.

On March 8, 2013, the United States Court of Appeals, 9th Circuit, released its en banc ruling reported as US v Cotterman, 709 F.3d 952 (9th Cir 2013) holding, at pp 960-61 and 966-67, that a routine, manual search of files on a laptop computer is reasonable “even without particularized suspicion”. The court described a routine, manual search as “a quick look and unintrusive search”. However, to engage in a forensic examination officials must “possess a particularized and objective basis for suspecting the person stopped of criminal activity”. The court concluded that reasonable suspicion was “a modest, workable standard that is already applied in the extended border search […] and other contexts.”

Whether the Cotterman rule governing border searches of computers applied equally to cell phones was the question presented in Cano.

3. The Cano Opinion

On August 16, 2019, the Ninth Circuit said – Yes. Writing for a unanimous panel in US v Cano, Case No. 17-50151, Judge Jay Bybee found, at p 20, that the court’s prescient ruling in Cotterman tilled the ground for the majority opinion of the United States Supreme Court in Riley v California, 573 US 373 (2014). The Cotterman court had recognized, at pp 965-66, that digital devices “contain the most intimate details of our lives” and “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy”. In Riley, Chief Justice John Roberts described cell phones, at p 393, as “a pervasive and insistent part of daily life” that “as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse”.

Judge Bybee found, at p 21, that the Supreme Court’s view of cell phones in Riley “so closely resembles our own analysis of laptop computers in Cotterman that we find no basis to distinguish a forensic cell phone search from a forensic laptop search.” Judge Bybee thus summarized the court’s conclusion this way, at pp 3-4:

“[W]e 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.”

The CBP officials therefore “violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search.” The district court’s order denying Cano’s motion to suppress was reversed and his conviction vacated.

4. Conclusion

In an amicus brief filed by the Electronic Frontier Foundation (EFF) in Cano, the Ninth Circuit was urged to reconsider the Cotterman rule in light of the Supreme Court’s intervening opinion in Riley and require a probable cause warrant for all border searches of electronic devices. In Riley, the majority had not only recognized the extraordinary privacy interests at stake in searches of digital devices but specifically held that such searches were not permissible under the doctrine of search incidental to arrest.

EFF argued that applying the border search exception to a cell phone’s data would “untether” the exception from the purposes underlying it. EFF contended that a border search encompasses only a search for illegal persons and physical contraband located on the body of the applicant for admission or among his or her effects. Because digital data on a cell phone cannot conceal objects such as drugs, guns or smuggled persons, EFF asserted that digital cell phone searches are always beyond the scope of the border search exception.

Judge Bybee agreed with EFF, at pp 17-8, that the purpose of the border search is to interdict contraband but disagreed with the premise that cell phones cannot contain contraband. “Although cell phone data cannot hide physical objects,” he wrote at pp 20-1, “the data can contain digital contraband. The best example is child pornography.” However, the court agreed that the border search exception is narrowly construed – justified by the purpose of interdicting contraband and is not a dragnet for evidence of general illegality. (See: Sophia Cope and Adam Schwartz. Ninth Circuit Goes a Step Further to Protect Privacy in Border Device Searches. EFF blog. August 22, 2019)

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