The Cell Phone, the Fourth Amendment and Border Searches

This post examines a recent opinion from the U.S. District Court for the Southern District of California:  U.S. v. Caballero, 2016 WL 1546731 (2016).  The judge begins by explaining that before the Court

is Defendant's motion to suppress evidence. Defendant seeks to suppress statements made and cell phone evidence discovered during questioning. . . .

U.S. v. Caballero, supra.

He goes on to outline the factual “background” for the motion to suppress and for his ruling on it.  U.S. v. Caballero, supra.  As the opinion explains,

[a]ccording to the Complaint, Defendant drove his automobile from Mexico to the United States Port of Entry in Calexico, California. He was the sole occupant of the automobile. At the Port of Entry, United States Customs and Border Protection officers decided to search the automobile and discovered fifteen kilograms of methamphetamine and one kilogram of heroine inside the gasoline tank. Defendant was arrested. Several hours later Defendant was questioned while his cell phone was being manually searched.

Defendant has now provided a sworn declaration in support of his motion. Defendant states that during his post-arrest questioning, one of the officers manually searched his cell phone and discovered a photograph of a large sum of money. He now seeks to suppress that photographic evidence and the officer's observation. He argues that it should be suppressed under the exclusionary rule as the fruit of an illegal search, based on Riley v. California, 134 S.Ct. 2473, 2485 (2014). The Government remonstrates that Riley has no application and that the search was permissible under the long-standing border search doctrine described in U.S. v. Flores–Montano, (541 U.S. 149, 152 (2004)).

U.S. v. Caballero, supra.

In a footnote to the first sentence in the second paragraph above, the judge explains that
Southern District of California Local Rule 47.1(g)(1) requires a declaration. `Criminal motions requiring a predicate factual finding must be supported by declaration(s). . . .The court need not grant an evidentiary hearing where either party fails to properly support its motion of opposition.’

U.S. v. Caballero, supra.  

In another footnote that follows the first, the judge explains that

[a]lso provided is a video recording of the Defendant's questioning in custody, and a partial translation of the Spanish language used during the questioning. The questions and answers are in Spanish and the video lasts approximately one hour. Defendant provides an English translation for 37 seconds of questioning. The 37 seconds of transcribed and translated questioning takes place midway through the interrogation. The Government provides a translation for the entire interrogation. The video picture is difficult to see. Much of the time, the Defendant is `off camera.’ At times, it appears that one of the officers is holding a dark object in his hand; the object could be a cell phone.

U.S. v. Caballero, supra.  

He then began his analysis of the substantive legal issues in the case, explaining that

[i]nternational travelers carry in their hands, pockets, handbags, and backpacks: laptop computers, iPhones, iPads, tablets, phablets, flip phones, smart phones, contract phones, no-contract phones, and digital cameras. These devices often contain private and sensitive data and photographs. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeals for the 9th Circuit 2013) (en banc). . . . Particularly for cell phones, Riley announced that arresting officers must generally obtain a search warrant before conducting a search. Riley v. California, supra. Fair enough. But, does Riley apply to a border arrest and search?

U.S. v. Caballero, supra.  

The judge went on to explain that,

[b]efore deciding whether Riley applies to this search, the issue of Defendant's standing needs to be addressed. Standing is required before a court will consider whether evidence found during a search will be suppressed at trial. U.S. v. Padilla, 111 F.3d 685, 688 (U.S. Court of Appeals for the 9^th Circuit 1997) (`We do not hold that members of a conspiracy can never have standing to contest a search of items or places related to the conspiracy. However, conspirators must show that they personally have “a property interest protected by the Fourth Amendment that was interfered with. . ., or a reasonable expectation of privacy that was invaded by the search”’) (citation omitted).

The Government argues that Caballero has not shown he has standing to contest the cell phone search. However, his declaration presents enough facts to demonstrate standing. Specifically, in his declaration, Caballero says that at the time of the arrest he possessed a black LG cell phone, that he used the cell phone, and that the phone was given to him by an ex-girlfriend. He did not consent to the search of that cell phone. This comports with the interrogation transcript and the officer's arrest report and is sufficient for standing. U.S. v. Lopez–Cruz, 730 F.3d 803 (U.S. Court of Appeals for the 9th Circuit 2013) (standing exists where defendant has possession of phone, uses the phone, has right to exclude others from using the phone, did not abandon or attempt to dispose of the phone, and legitimately possessed the phone).

U.S. v. Caballero, supra.  

In another footnote, the judge quotes from a transcript of the officers’ questioning Caballero about the photo and the phone that took it:

Officer: Yes, and these photos?

Def: Which ones?

Officer: Do you take money into Mexico?

Def: No.

Officer: That's your phone.

Def: That's my phone.

Officer: Where did you take that photo?

Def: But that phone's not in my name. I use it. But the other one is in my name.

Officer: Oh, [expletive], man.

Def: I just use the phone.

Officer: Hey, look, do you think we're stupid or what?

Def: No, sir.

Officer: So then?

Def: I'm not saying you're stupid or anything. Those two are my phones. Those two are.

Officer: Ah, and this one? Oh, what about that one? Did you find it?

Def: Those two are in my name.

Officer: And this phone? What's the deal with this phone?

Def: Ah, somebody gave me that phone.

Officer: Who?

Def: A person.

Officer: Uh huh, a person.

U.S. v. Caballero, supra.  

The opinion goes on to explain that the

interrogation transcript along with the declaration makes clear that agents conducted a cursory search of Defendant's cell phone and discovered the photo. There is no evidence that the agents did an extensive forensic search or transported the phone away from the border for computerized searching.

U.S. v. Caballero, supra.  

The Judge then outlines the specific legal issues that arise in this case:

The issue of whether such a search violates the Fourth Amendment stands at the intersection of two avenues of law. Heading in one direction is the Supreme Court's bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty. sovereignty. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeal sfor the 9th Circuit 2013) (`The broad contours of the scope of searches at our international borders are rooted in “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” Thus, border searches form “a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause”’) (citations omitted).

The question presented by this case is this: once a person is placed under arrest at the border, may officers conduct a cursory search of the arrestee's cell phone without a warrant? Riley says, `No.’ But, Riley does not address a search at the border. The border search exception says, `Yes.’ But, neither the Supreme Court, nor the Ninth Circuit, has decided a case involving the heightened privacy interests implicated by a cell phone search at the border after an arrest.

U.S. v. Caballero, supra.  

He also noted that, a

decade before Riley, the Supreme Court reaffirmed the Government's historical right to search without a warrant people and property crossing the border into the United States. Flores–Montano, supra. Flores–Montano explains,

[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that `searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’ Congress, since the beginning of our Government, `has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.’

 The modern statute that authorized the search in this case, 19 U.S. Code § 1581(a), derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, and reflects the `impressive historical pedigree’ of the Government's power and interest. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.

Flores–Montano, supra (citations omitted).

The judge went on to address a case that complicated the analysis even further, noting that the 9^th Circuit Court of Appeals’ decision in U.S. v. Cotterman, supra, 

applied the border search doctrine to digital storage devices. In particular, a laptop computer. The decision offers several guideposts. To begin with, `border searches are generally deemed “reasonable simply by virtue of the fact that they occur at the border.”” U.S. v. Cotterman, supra (quoting U.S. v. Ramsey, 431 U.S. 606 (1977)). `Individual privacy rights are not abandoned’ at the border but are weighed against the interests of the sovereign. U.S. v. Cotterman, supra. . . .`That balance “is qualitatively different . . . than in the interior” and is 'struck much more favorably to the Government.’ U.S. v. Cotterman, supra (quoting Montoya de Hernandez, 473 U.S. 531, 538, 540, 105 S.Ct. 3304 (1985)). `Nonetheless, the touchstone of the Fourth Amendment analysis remains reasonableness. The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation.’ U.S. v. Cotterman, supra (citations omitted).

U.S. v. Caballero, supra.  

The judge pointed out that,

[a]pplying these principles to a border search, the Ninth Circuit held (pre-Riley) that a manual (or cursory) search of a personal electronic device such as a laptop computer needs no warrant. U.S. v. Cotterman, supra. The court noted that it had previously approved – under the border search doctrine—`a quick look and unintrusive search of laptops’ without suspicion or a warrant. U.S. v. Cotterman, supra. . . . Cotterman did not change that.

What Cotterman did change was the standard for conducting a deep, forensic search of a laptop at the border. Cotterman attempted to achieve the correct balance between: (a) the increased interests of the sovereign at the border; (b) a traveler's diminished expectations of privacy in general at the border; and (c) the substantial personal privacy interests implicated by the broad amount of data contained in or accessible through a digital device. `Notwithstanding a traveler's diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment's reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.”' U.S. v. Cotterman, supra.

U.S. v. Caballero, supra.  

He therefore found that the

warrantless, cursory search of Defendant's cell phone in this case is clearly permissible under the border search doctrine enunciated by Cotterman.  With the discovery of undeclared, illicit drugs hidden in Defendant's vehicle, law enforcement officers had plenty of evidence to meet the heightened standard: reasonable particularized suspicion of unlawful conduct. Officers certainly had reasonable suspicion to search the cell phones carried by Caballero after finding 15 kilograms of methamphetamine and one kilogram of heroin hidden in the gas tank of Caballero's automobile as he crossed the border.

There is no question that a cell phone search, limited as it was in this case, qualifies as a reasonable search at the international border when performed prior to an arrest. Cotterman dictates this much. Since the Cotterman decision is almost on all fours, it controls the outcome of this motion to dismiss. Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device's contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest.

Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable. . . .

U.S. v. Caballero, supra.  

The Judge, however, also found that

[w]hat makes this case different is that there was no arrest before the laptop search in Cotterman. Cotterman was permitted to pass into the country. Only his laptops and a camera were detained and searched. In fact, Cotterman was able to flee to Australia two days later. Once an international traveler is placed under arrest at the border, the context changes. While, `[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border’ (Flores–Montano, supra), once unwanted drugs have been discovered and a person arrested, it can be said that the Government has achieved its goal of discovery.

A `stopping and examining [of] persons and property crossing into this country’ (Flores–Montano, supra), has already taken place. Illicit narcotics have been discovered. Reasonable suspicion has jelled into probable cause. Any goal the Government might have of proceeding expeditiously to avoid delaying innocent travelers, evaporates. There is no more need for agents to work expeditiously to return the digital device to the traveler so that he or she may be on their way. Agents may take their time to obtain a search warrant.

U.S. v. Caballero, supra.  

He went on to explain that,

[i]f this Court were free to decide the question in the first instance, it would hold that the warrantless cell phone search under these circumstances would be unreasonable. See e.g., U.S. v. Djibo, 2015 WL 9274916 (U.S. District Court for the Eastern District of New York 2015) (“In this case, the search was undertaken to find contraband or currency and neither were found. . . . Based on the line of [the government agent's] questioning and Djibo's outbound status, this cannot be considered within the purview of a border search. . . . He could have been arrested, his phone seized pursuant to the border authority, and a search warrant obtained before any searching occurred. [The government agent] sought to sidestep these constitutional guarantees’). A warrantless search of a cell phone incident to an arrest in the interior of the country, is clearly a Fourth Amendment violation under Riley v. California, supra.

After all, in an area where bright line rules are few, Riley paints a fairly bright line: `Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.’ Riley v. California, supra. Requiring a search warrant after an arrest at the border would offer a consistently bright line.

U.S. v. Caballero, supra.  

He then explained why he could not apply the Supreme Court’s decision in Riley v. California, supra.  He pointed out that,

[a]lthough Riley could be applied to a cell phone search at the border, this Court is bound by Cotterman. The Ninth Circuit [Court of Appeals] has answered the `sometimes very difficult question’ of when a district court may reexamine normally controlling circuit precedent in the face of an intervening Supreme Court case. See Miller v. Gammie, 335 F.3d 889 (U.S. Court of Appeals for the 9<sup>th</sup> Circuit 2003) (en banc). It adopted a `clearly irreconcilable’ standard:

`We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.'

Id. at 893 (emphasis added). In other words, `the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, supra. Here, the reasoning and theory of Cotterman is not clearly irreconcilable with the reasoning and theory of Riley, as evidenced by a number of courts finding that Riley simply does not apply to cell phone searches at the border.

U.S. v. Caballero, supra.  

The judge therefore held that,

[b]ecause the cases are not clearly irreconcilable, this Court is bound by the en banc decision in Cotterman, which requires neither warrant nor reasonable suspicion to justify a manual cursory search of a digital device being brought across an international border. Therefore, the motion to suppress is denied.

U.S. v. Caballero, supra.