by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit has clarified when warrantless searches of cellphones at the border are reasonable.

Customs and Border Patrol (“CBP”) agents discovered nearly 31 pounds of cocaine in the spare tire of Miguel Angel Cano’s vehicle as he attempted to enter the U.S. at San Ysidro Port of Entry. Cano denied any knowledge of the cocaine and stated he was starting a job that day at a carpet store in Los Angeles. He was arrested, and a CBP official seized his cellphone. CBP Agent Petonak manually searched the cellphone “to find some brief investigative leads in the current case” and “to see if there’s evidence of other things coming across the border.” CBP Agent Medrano also manually searched the cellphone. Medrano then conducted a forensic search or “logical download” of the phone using Cellbrite software. The Cellbrite search enabled Medrano to access Cano’s text messages, contacts, call logs, media, and application data while permitting Medrano to select which data types to download. Medrano downloaded a call log that listed all calls made by Cano — none of which were made to any carpeting stores. Medrano did not download any photographs. Cano was indicted for importing cocaine. Before trial, he moved to suppress any evidence seized from the warrantless searches of his cellphone. The district court denied the motion.

At trial, the Government used evidence seized from the phone, including the call log. Cano was convicted. On appeal, he argued, inter alia, that the district court erred when it denied his suppression motion.

The Ninth Circuit observed “[t]he Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Ordinarily, before conducting a search, police must obtain a warrant issued by a judicial officer based “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. Constitution, Amendment 4. Warrants are required unless exigent circumstances make the needs of law enforcement so compelling that the warrantless search is objectively reasonable. Mincey v. Arizona, 437 U.S. 385 (1978).

Warrantless searches are per se unreasonable, subject to a few specifically established exceptions. Katz v. United States, 389 U.S. 357 (1967). Specific exceptions include border searches, United States v. Ramsey, 431 U.S. 606 (1977), and searches incident to arrest, Weeks v. United States, 232 U.S. 383 (1914). The border-search exception is rooted in the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into the country with the purpose of preventing the entry of unwanted persons or contraband. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). One example of contraband detected on cellphones at the border is child pornography. United States v. Molina-Isidoro, 884 F.3d 287 (5th Cir. 2018). A search of a cellphone that is more intrusive than a manual search, e.g., a forensic search of the phone’s contents, requires reasonable suspicion that the particular phone contains contraband. Id. Border searches are conducted only to enforce importation laws and not for general law enforcement purposes. United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979).

Only persons authorized to board and search vessels — such as customs and immigration officials — may conduct border searches, not FBI agents or other general law enforcement officers. Id. The search-incident-to-arrest exception has a twofold purpose: (1) to secure the officer’s safety and (2) to prevent the concealment or destruction of evidence. Riley v. California, 573 U.S. 373 (2014). A warrantless search that exceeds the scope or purpose of the exception is unreasonable. Id. For example, a search of the contents of a cellphone that was seized incident to an arrest is unreasonable because the search did nothing to protect the officer’s safety nor did it prevent the destruction of any evidence. Id. Once the phone was seized, officers were obligated to obtain a warrant before searching the contents. Id.

The Court held that manual searches of cellphones at the border are reasonable without individualized suspicion, but the more intrusive forensic examination of the phone’s contents require a showing of reasonable suspicion. 

It further held that “the border search exception authorizes warrantless searches of a cell phone only to determine whether the phone contains contraband.” A warrantless search, either manual or forensic, must be limited in scope to whether the cellphone contains digital contraband related to a current border-related crime. The Court clarified that border agents may not “conduct a warrantless search for evidence of past or future border-related crimes,” i.e., evidence of contraband that’s not present at the border. It acknowledged that its conclusion is at odds with the Fourth Circuit, which reached the opposite conclusion in United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018).

In the instant case, the CBP agents conducted the manual search and the forensic search of Cano’s phone with the purpose of detecting other crimes. As such, they exceeded the scope of the border exception and the search-incident-to-arrest exception. Furthermore, there was no showing of reasonable suspicion that Cano’s phone in particular contained contraband to justify the Cellbrite search. Consequently, the Court ruled that the searches were unreasonable. 

Accordingly, the Court reversed the order of the district court denying Cano’s motion to suppress and vacated his conviction. See: United States v. Cano, 890 F.3d 133 (9th Cir. 2019). 

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