Court: Border Search Warrant Exception Beats Riley In The 'Constitution-Free Zone'

from the protections-arbitrarily-applied-to-protect-inland-electronic-devices dept

The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already.

The area of the United States where the Constitution does not apply — while still being fully within the borders of the US — apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone.

The court notes the Riley decision says one thing but the “border exception” says another.

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.

Balancing the two competing interests in this case, the court ultimately finds the government’s national security interest outweighs citizens’ privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by “cursory” searches of devices, it is only violated a little.

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.

The “border exception” the court carves out for a warrantless search of cellphones at the border somehow relies on exceptions carved out in the original Riley decision, despite saying Riley doesn’t control border searches.

The two cases can be reconciled. The most obvious path for reconciliation is to conclude that the border search exception is among the traditional exceptions to which Riley’s warrant requirement does not apply. This approach finds safe footing in the Supreme Court’s statement that “other” “exceptions” may continue to justify a warrantless search. Riley, 134 S. Ct. at 2494 (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”). It also is consistent with the observation from Montoya de Hernandez, (473 U.S. at 539), about when balancing individual privacy rights against rights of the sovereign, the balance “is qualitatively different . . . than in the interior” and the balance is “struck much more favorably to the Government.” This approach also avoids the spectacle of deeming that Riley undercut 200 years of border search doctrine without even a mention.

Not as much of a “spectacle” as the California court would think, considering the Riley decision set aside years and years of the government relying on dubious analogies like “containers” or “pair of pants” to justify the search and seizure of anything carried on or near a person (like in their vehicle) incident to arrest. It may not date back 200 years, but it does date back to the Fourth Amendment itself, which is a controlling authority with more than 200 years worth of history.

The case here deals with an actual border crossing (Calexico, California) but the government has basically declared any area within 100 miles of a border can be called “the border” for the sake of searches and detainments predicated on reasonable suspicion or, in many cases, law enforcement hunches.

As for this case, it’s hardly the ideal test for balancing Riley against the border search exception. For one, the defendant challenging the warrantless cellphone search was already neck-deep in reasonable suspicion, thanks to the discovery of drugs in his vehicle. Officers on scene had more than enough reason to detain him and likely had uncovered enough damning evidence to support a warrant affidavit. Of course, they did not seek one. Instead, they briefly browsed his phone until they found further suspicious content.

Some courts refuse to give officers a pass when they could have gotten a warrant but choose not to. Those courts are in the minority. This court is part of the majority.

Here, illicit narcotics had been discovered. Caballero had been arrested. Reasonable suspicion had jelled into probable cause. For the time being, he and his cell phone were safely in the hands of government agents. Other than the increased administrative work required, there is no apparent reason why Riley’s search warrant requirement could not be applied without undercutting the interests supporting the border search doctrine. One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made. Nevertheless, as long as this Court can apply circuit precedent without running afoul of intervening authority, it must do so.

Being within 100 miles of the border means never having to seek a warrant, even if the government has both the time and the probable cause to do so… at least until someone manages to push a challenge up to the appeals court level or beyond.

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Comments on “Court: Border Search Warrant Exception Beats Riley In The 'Constitution-Free Zone'”

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56 Comments
Anonymous Coward says:

Re: Re:

it doesn’t take a case, to apply the reasoning involved.

In a similar fashion, drunk driving “searches” involving blood tests should rightfully involve a search warrant. Some states explicitly do, some states don’t. The ones that do can get a warrant for the search in 5 or 10 minutes. The ones that don’t whine that it can take an hour or more.

The rural areas whine they don’t have the manpower, the urban areas (say, NYC) whine they are overwhelmed. In both cases, it is a condition of their own making.

So it is with the border. There’s no reason not to get a search warrant if you’ve already arrested the owner of the bloody phone. None.

The judge in this case simply failed to apply the reasoning behind the border exception.

Anonymous Coward says:

Re: Re: Re:

There’s no reason not to get a search warrant if you’ve already arrested the owner of the bloody phone. None.

Great another anti-patriot, that is police state mentality and in contravention of the 4th!

You can be arrested for looking stupid and you somehow think that just being arrested now allows law enforcement to do whatever they fucking want?

Citizens like you deserve no rights or protections! You are Public Enemy #1 because it is people like you that have fomented the Police State to begin with!

YOU ARE A TRAITOR TO YOUR FELLOW CITIZENS!

Anonymous Coward says:

Re: Re: Re:2 Re:

You do realize you just insulted the founding fathers right?

You tell me, what is worst? One AC telling another AC that their support of the Police State is a core problem and that they are threat to their fellow citizens or someone like you trying to belittle the exchange itself as though the freedom and lives of the citizens LITERALLY being murdered by the police state is some joke?

You may not be as decent of a human as you might believe!

Anonymous Coward says:

Re: Re: Re:2 Re:

Do tell, if I seek to allow Police the power to do anything they want to a citizen just because they were arrested what would you think?

The 4th is very clear? If I am okay with letting law enforcement get away with trampling your rights how would I NOT be a traitor?

I think the fundamental problem here is everyone’s inability to call a spade a spade? The founders said as much about citizens that would not help defend their fellow man. The world if full of traitors, we typically call them cowards instead but to become a coward you have at least performed the act of betraying some principle or belief.

If you will not defend liberty then you deserve it not, and are additionally a traitor to the ideal if you actively enjoy the fruits of liberty. Another term of Hypocrite comes to mine as well. Notice how the terms… Coward, Hypocrite, & Traitor carry very similar undertones?

Uriel-238 (profile) says:

Re: Re: Re:8 Tu quoque?

So the level of debate to which you aspire remains at the toddler level?

Fair enough. I’m remaining terse with you because I don’t want to waste the energy. My history on this site shows I’m all too willing to explain a position if I think it’s worth it.

It’s one thing to have an opinion. It’s another thing to actually think it through and base your opinion on facts and consideration.

Remember, you’re still free to elaborate.

Anonymous Coward says:

Re: Re: Re: Re:

“you somehow think that just being arrested now allows law enforcement to do whatever they fucking want?”

Well, yes, actually. Recent amendments to the US Constitution allow them to do what they think is necessary and prudent to secure the safety and security of the country. But remember, if you have done nothing wrong, then you have nothing to hide and nothing to fear.

Anonymous Coward says:

Re: Re: Re:2 Re:

You broke my brain.

Between trying to figure out if you are just being sarcastic or what you think a recent Amendment is ( Last Amendment was http s:// en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution ) I am not sure what to make of your comment.

And of course the old if you did nothing wrong bit… always a classic non-sequitur.

Someone needs to say that to the government… if you are doing nothing wrong then you don’t need secret laws, secret courts, and secret letters.

“State Secret & Matter of National Security” never has any business being a part of a land where Liberty was a founding principle.

Anonymous Coward says:

Re: Re: Re:4 Re:

Ha ha… I do get it… but you are first one to jokingly refer to them as amendments… so I was just checking to see if I am on the right track… still not sure I am on the right track.

Either way, those secret processes are one of the things I hate the most and sadly, like you say most people know nothing of.

Kinda like some of the other AC’s I responded to on this thread that have some rather nasty anti-liberty leanings. Hell they even get mad when you tell them things that the Founder’s themselves say!

Anonymous Coward says:

Re: Re: Re:5 Re:

Ha ha… I do get it… but you are first one to jokingly refer to them as amendments… so I was just checking to see if I am on the right track… still not sure I am on the right track.

If there are secret rulings and secret laws and secret courts, how do you know there have not been secret amendments to the Constitution?

nasch (profile) says:

Re: Re: Re: Re:

Great another anti-patriot, that is police state mentality and in contravention of the 4th!

I think his statement could be rephrased as “if executing a search of the phone of someone you’ve already arrested, there’s no reason not to seek a warrant first.” You seem to have interpreted it as “there’s no reason to ever deny a warrant to search someone who has already been arrested”.

David says:

Would you like a border sham? Would you like it Sam-I-am?

Being within 100 miles of the border means never having to seek a warrant

Where “border” includes international airports, so by far the majority of the U.S., and particularly the majority of its citizens, are not under the protection of the Bill of Rights these days.

If you had told the Founding Fathers that their Constitution were to hold only in distances of at least 100 miles to the next international harbour… There goes New England. Ok, it’s gone these days as well, but there is no Jefferson or Madison to complain about it.

And frankly, law enforcement has a dim view on the hicks who formally still can claim constitutionally guaranteed rights just because they are out in the woods far away from an international airport.

Those people are sort of like companies moving their money into tax havens to escape proper taxation: they think they can rely on legal trickery to escape what’s due to them.

Not an Electronic Rodent (profile) says:

Re: Would you like a border sham? Would you like it Sam-I-am?

Where “border” includes international airports, so by far the majority of the U.S., and particularly the majority of its citizens, are not under the protection of the Bill of Rights these days.

Doesn’t even need to include airports to be outrageous… A quick look suggests that an area over 5x the size of the entire United Kingdom is encompassed by “100 miles from the actual border”.

According to the ACLU, the “border” exemption applies to approx 2/3 of the US population! (~200 million people!)

From this side of the pond it increasinly looks like the US government is like: “Oh, yeah… the Constitution… fabulous document… in the abstract. Let’s just not have it apply to actual people, right?”

Whatever (profile) says:

Re: Re: Would you like a border sham? Would you like it Sam-I-am?

“According to the ACLU, the “border” exemption applies to approx 2/3 of the US population! (~200 million people!)”

Yes, but it applies for border patrol agents, and applies in situations related to import, export, human trafficking, and the like. The rule exists in no small part to avoid the issue of people crossing the border and running a few hundred meters to be “out of the jurisdiction” of the border patrol. It’s not generally used as some sort of overwhelming, no warrant required system to harass the citizens.

What it does allow is things like check points on major highways after the border, say 20 or 30 miles inland. This is a pretty important part of trying to stop human smuggling and such, as these are points with few options for people to get around. This has been a pretty effective deal overall.

The constitution still applies. Trying to use this sort of exemption in non-border related issues would be a fail (but the ACLU doesn’t want to talk about that, can’t drive memberships when you have nothing scary for people to blindly repeat!).

Anonymous Coward says:

Re: Re: Re: Would you like a border sham? Would you like it Sam-I-am?

“It’s not generally used as some sort of overwhelming, no warrant required system to harass the citizens.”

Depends upon your skin color now doesn’t it.

“check points on major highways”

And this is not an infringement upon a person’s rights?

“trying to stop human smuggling and such”

As if there were no other, better alternatives.

“This has been a pretty effective deal overall.”

Yeah, for the private prison industry.

“The constitution still applies”

Hardly.

“Trying to use this sort of exemption in non-border related issues would be a fail “

Oh sure, it does not happen at anywhere else all does it?
I imagine you also think Stop ‘n Frisk is a very successful program in NYC.

Sadalbari says:

Re: Re: Re: Would you like a border sham? Would you like it Sam-I-am?

Yes, but it applies for border patrol agents

Citation that it applies to no one else, please.

import, export, human trafficking

Citation that it is void in other cases, please.

20 or 30 miles inland

Citation that it only applies 30 miles inland, please.

Whatever (profile) says:

Re: Re: Re:2 Would you like a border sham? Would you like it Sam-I-am?

“Citation that it applies to no one else, please.”

here, let me get that for you…

https://en.wikipedia.org/wiki/Border_search_exception

“Citation that it is void in other cases, please.”

here, let me get that for you…

https://en.wikipedia.org/wiki/Border_search_exception

Happy reading.

nasch (profile) says:

Re: Re: Re: Would you like a border sham? Would you like it Sam-I-am?

What it does allow is things like check points on major highways after the border, say 20 or 30 miles inland. This is a pretty important part of trying to stop human smuggling and such, as these are points with few options for people to get around.

Why not put the check point… I don’t know, at the border?

Anonymous Coward says:

Re: Re:

Yep, it is clear that the Executive, Legislative, & Judicial Branches no longer even remotely honor the Powers Granted to them and have been in a race to see who can pervert & corrupt their part of Government the Fastest!

And Sadly, as “The People” Cheer them on too! None of the current pres candidates are against the police state and seek to further destroy this nation.

It is my most sincere wish that the Republican Party nominates someone other than Trump or Cruz so that one of them will run as an independent setting up the stage to begin the destruction of the Republican Party. Only as an independent will I vote for a cock sucking turd like Trump… but that is only because destroying one of the corrupt political parties now becomes a reality and more important than anything else in politics right now.

Hopefully those that vote Democrat would get off their worthless asses and do something to straighten out their own sick and perverted party. It is amazing that the democratic base has become so ignorant and illiterate regarding the Constitution that they are exacerbating the cancer eating away at this country.

Anonymous Coward says:

Re: To clarify...

That would be correct.

Instead of a society that says everyone is innocent until proven guilty, we have effectively become “Guilty until Proven Innocent.”

Once the police have accused, both the public and the courts just take it on faith. If a cop says you ran a red light, then you ran it. There are even cases where officers manage to overturn photographic evidence.

The word of a member of law enforcement should be just as valued as a member of the citizen. Law Enforcement bears the responsibility of securing the evidence that makes it clear the law was broken. And that the evidence be secured in a fashion compliant with the 4th and in a fashion that does not give cause to suspect any form of foul play with a constantly reviewed chain of custody on that evidence.

It is better for a 100 criminals to go free than for a single innocent person to be criminalize.

Law enforcement believes that it is better for 100 innocents have their rights removed, thrown in jail, socially & legally raped by the system than to let any potential criminal escape justice!

David says:

Re: Re: To clarify...

Law enforcement believes that it is better for 100 innocents have their rights removed, thrown in jail, socially & legally raped by the system than to let any potential criminal escape justice!

I’m afraid these days it’s more like law enforcement believes that it is better for 100 innocents have their rights removed, thrown in jail, socially & legally raped by the system than not.

You do not really believe that an absence of criminals would change their approach?

Anonymous Coward says:

Re: Re: Re: To clarify...

Sadly you are right…

There are more than enough stories in the media that make it clear that the Police like to flex their “Authority” just because they feel like a power trip.

They don’t give a shit, they just need to harm someone for the fun of it, and all other other officers that stand by and do nothing… well we need to make it clear that is a problem all its own as well.

This is why pretty much all law enforcement officers are bad, because they tolerate the bad in their ranks!

Bergman (profile) says:

The obvious solution

Simply separate national security from criminal justice.

National security does not require warrants, but anything learned from it cannot be used as evidence in a trial.

All you’d need to do to make it fair is to pass a law making parallel construction to get around that inadmissibility rule punishable by twenty years in prison, and an immunity-bypassing tort.

Anonymous Coward says:

Re: The obvious solution

Nope.

Never EVER, EVER!!!

We must never allow the government to have any secrets period ESPECIALLY ON NATIONAL SECURITY. With just 1 exception. War-Time activities and War Equipment and Research. Once a military piece of equipment is designated for deployment against a civilian target then it must be declassified, if fact it should be FORCED to be declassified as punishment for using it!

If we are to actually have a Civilian Run military then we (the muthafucking civilians) should know at all times where military engagements happen 24hrs after they occur without an active declaration of war!

Any tolerance for secrecy in the government is just like saying we welcome corruption! You can never trust government, and you must always verify what they say. Anything hiding in the shadows does so because it is about to do something bad, and likely something the American Citizenry would not approve.

We have gone down the route of allowing the agencies to usurp too much power in government and old military industrial complex is in fact alive and well, pulling several strings. Those guys are the thought leaders from back in the day when the American government decided it was okay to perform experiments on its Citizens.

Government is the #1 enemy of civilization, for they have destroyed more citizens & innocents than even war itself! If you must create a government you must put handcuffs on them and keep them FIRMLY secured, because once they get them off… they put them on you and trust me, they will NEVER be as nice about them as you were to them! Government sees citizens and meaningless numbers in small groups… you only count if there are a lot of you.

The bigger the government, the smaller the citizen… and you can be disappeared easily and no one will even notice enough, let alone care! The laws be damned… that is the price we pay for allowing secrets in government!

That One Guy (profile) says:

Re: Slightly optimistic

National security does not require warrants, but anything learned from it cannot be used as evidence in a trial.

All you’d need to do to make it fair is to pass a law making parallel construction to get around that inadmissibility rule punishable by twenty years in prison, and an immunity-bypassing tort.

While I’m sure countless agencies would love the first half, actually enforcing the second half would be all but impossible, given how many judges are willing to bend over backwards in the name of ‘National Security: Because Terrorists!’, and how difficult it can be to prove evidence laundering.

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