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.

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


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  • identicon
    OGquaker, 27 Aug 2019 @ 4:40am

    As a Card-Carrying pacifist, i have not been on an airline or crossed our border since 9-11. When taking a Greyhound to the Pacifica Radio National board meeting in 2001, i was forced off the bus and handcuffed to a bench in the Chicago station until my bus left, i had been conversing with an Amish family.
    Proud now to live close to the 9th district, the old Vista hotel.

    Oppenheimer's 'Project Vista' paid for my family house, but that's another story.

    reply to this | link to this | view in chronology ]

  • identicon
    Joel Coehoorn, 27 Aug 2019 @ 6:38am

    I don't know

    I think this ruling is generally good -- there should be "reasonable suspicion" first before a search can be made.

    But I disagree on one point. In this particular case, I'd say the presence of drugs in the vehicle IS reasonable suspicion. To me, if they find drugs, even if they're not yours, you should expect them to amp things up a bit.

    Of course, having found the drugs, it should have been easy to get a warrant. But I don't know that serves anyone's interest in this kind of situation. You're adding a few hours extra time for the officer to complete and submit the paperwork and the judge to review and grant the request, and for that grant to get back to the officer.

    No judge is going to deny the warrant when they've already found the drugs. So all a warrant requirement accomplishes is making you wait a few longer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 6:54am

      Re: I don't know

      That is well down a slippery slope, as claiming they had enough to convince a judge to grant a warrant removes all protections offered by them actually getting a warrant.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 8:14am

      Re: I don't know

      So all a warrant requirement accomplishes is making you wait a few [hours] longer.

      Are you suggesting that the people carrying drugs over the border are not already required to wait a few hours (or days, or months, or years...)? If standard procedure when border agents find drugs is to immediately search their devices so that the perpetrator can continue on their way as quickly as possible (instead of say, sending them to jail like normal police do with people who allegedly committed crimes), then I think you have some bigger issues to worry about than whether the border agents need to get a warrant or not.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 8:21am

      Re: I don't know

      Of course, having found the drugs, it should have been easy to get a warrant.

      On this we agree.

      So all a warrant requirement accomplishes is making you wait a few longer.

      On this we do not. There was another case TD covered a few weeks ago where the court didn't suppress the evidence using similar logic. And on the surface that might sound acceptable, but it isn't. There's a reason that the constitutional requirement exists. Even if it's a foregone conclusion that the warrant will be granted, it still needs to be granted. The government doesn't get to ignore its own rules whenever it feels they're inconvenient.

      reply to this | link to this | view in chronology ]

    • icon
      Crookshanks (profile), 27 Aug 2019 @ 8:46am

      Re: I don't know

      But I don't know that serves anyone's interest in this kind of situation.

      Umm, really? It serves everyone's interests. It serves the defendant's interest by making sure the cops don't overstep their bounds. It serves society's interest by making sure we still respect the principles that our country was founded on, principles that date back to the Magna Carta. It serves the interests of the State by making sure an obviously guilty man doesn't walk free because the cops took a shortcut.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 27 Aug 2019 @ 8:57am

      Re: I don't know

      "It takes too long" is not a valid argument against complying with the Bill of Rights.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Aug 2019 @ 9:51am

        Re: Re: I don't know

        To a certain extent.

        If the cops hear gunfire in a house (exigent circumstances), no one is going to make them get a warrant before bursting down the door.

        A drug stop, though --- especially one where the evidence isn't going anywhere before the warrant is obtained --- doesn't qualify.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 11:01am

      Re: I don't know

      But I disagree on one point. In this particular case, I'd say the presence of drugs in the vehicle IS reasonable suspicion. To me, if they find drugs, even if they're not yours, you should expect them to amp things up a bit.

      So you think it is reasonable to suspect there may also be drugs hidden in the phone since there were drugs in the vehicle? Your definition of "reasonable" is certainly different fro mine.

      Of course, having found the drugs, it should have been easy to get a warrant. But I don't know that serves anyone's interest in this kind of situation.

      Warrants serve no interest, huh? I'm curious, which flavor do you prefer, that of licking cop boots or kissing cop ass?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 11:18am

      Re: I don't know

      Drugs are not suspicious in and of themselves. Lots of people carry drugs legitimately, even across borders. There also needs to be reasonable suspicion that they're for illegal use or sale.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2019 @ 3:54pm

      Re: I don't know

      If the government does not show good faith towards the citizens of this nation, why should they be granted good faith exemptions to rummage through innocent people's material posessions without obeying the laws of this nation? This is a rogue government that is doing exactly what the fucking nazis did, with only the exception of the gas chambers.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Aug 2019 @ 2:11am

      Re: I don't know

      No judge is going to deny the warrant when they've already found the drugs. So all a warrant requirement accomplishes is making you wait a few longer.

      Incorrect, a warrant creates limitations on what those with badges can and cannot do by stating what they are searching for, why they think it's in a given location, and where they are searching, creates a paper-trail of those limitations in case they violate them afterwards, and allows a third-party to veto a search if it's not reasonable or justified. Without those limits in place they can essentially search whatever they feel like for whatever looks incriminating, allowing them to engage in fishing expeditions any time they feel like someone might be guilty or they might be able to find some extra evidence that they didn't find the first go.

      Cops or in this case border agents may not like a check on their already significant power, but it very much does serve the interests of the public for those checks to be in place(all the more so when they're actually enforced).

      reply to this | link to this | view in chronology ]

  • icon
    JdL (profile), 27 Aug 2019 @ 6:43am

    Good news, if it sticks. But it'll take a lot more to stop the government's march to run our lives down to the smallest detail.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 27 Aug 2019 @ 7:57am

    I MUST search your phone for contraband

    Your phone may have contraband such as drugs, guns, knives, etc.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 27 Aug 2019 @ 8:12am

      Re: I MUST search your phone for contraband

      More likely the contraband they will come up with is child porn, or possibly copyright infringement (more likely the child porn, at least until Big Copyright gets involved). My question is how will they explain their 'reasonable suspicion' for either without some other evidence pointing to one or the other.

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 28 Aug 2019 @ 9:20am

        Re: Re: I MUST search your phone for contraband

        "My question is how will they explain their 'reasonable suspicion' for either without some other evidence pointing to one or the other"

        They are not supposed to be able to. That's the point. Unless they have some evidence that a search is warranted, they are not supposed to be able to search you. The police in this country are not supposed to be able to stop and frisk everyone that walks past to see if they happen to have some kind of contraband.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 27 Aug 2019 @ 8:21am

      Re: I MUST search your phone for contraband

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Aug 2019 @ 9:11am

    I won't be back to the US ever, but...

    Will this put an end to abuses like [Link]https://www.washingtonpost.com/news/the-switch/wp/2016/11/30/u-s-border-agents-stopped-journal ist-from-entry-and-took-his-phones/ or [Link]https://www.theguardian.com/us-news/2017/mar/31/us-border-phone-computer-searches-how-to-prote ct

    We've had people turned away at the Canada-US border because they intended to engage in peaceful protest while abroad - and snooping through mobile devices was used as the basis for these incidents. How is this "contraband"?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 27 Aug 2019 @ 9:20am

      Re: I won't be back to the US ever, but...

      "How is this "contraband"?"

      It isn't. And to be clear, this ruling only applies within the confines of the 9th Circuit. So have some care which areas of the border you cross, or which international airports you arrive at, should you or your friends change your minds.

      Many of us are not happy with the way our borders are treated by our government, by the same token some control must be maintained. The idea that the Constitution does not exist within 100 miles of a border (that includes international airports) is particularly obnoxious. How we go about abolishing this rights violation will be interesting to watch. But, don't hold your breath, it is gonna take more time than you can hold it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Aug 2019 @ 11:06am

        Re: Re: I won't be back to the US ever, but...

        Many of us are not happy with the way our borders are treated by our government,

        Especially when you consider that the majority of us live within that border exclusion zone.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 27 Aug 2019 @ 11:30am

    I dont think anyone has brought this up

    The REAL pain in the But part of the searches, is they can find anything, and Take you to jail.
    They can remove all your Music, movies, Pictures...what ever they wish to do.
    With the Excuse of Terrorism.
    How many people could/have been arrested or REPORTED, for bringing Hacked materials over the border...RIAA/MPAA would love all of this.
    Is there any place to see how many have been arrested and for what cause??? And anyone arrested for terrorism would be Stood up and Displayed as if we had Found the Next Christ.(SEE WE FOUND 1)

    Our nation is built with a Interesting idea. You cant be condemned unless you already DID IT..(except for rape and claims of child molestation).

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 27 Aug 2019 @ 11:37am

      Re: I dont think anyone has brought this up

      https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics

      Office of Field Operations (OFO)
      2017 2018 2019
      Total Inadmissibles1 216,370 279,036 235,467
      U.S. Border Patrol
      Total Apprehensions2 310,531 404,142 766,918
      Total Enforcement Actions 526,901 683,178 1,002,385

      FUN PART...
      1Inadmissibles refers to individuals encountered at ports of entry who are seeking lawful admission into the United States but are determined to be inadmissible, individuals presenting themselves to seek humanitarian protection under our laws, and individuals who withdraw an application for admission and return to their countries of origin within a short timeframe.

      2Apprehensions refers to the physical control or temporary detainment of a person who is not lawfully in the U.S. which may or may not result in an arrest.

      REALLY?? #2?
      So you can Sit them in the office for 2-4 hours(reports are strange here)an declare them as APPREHENSIONS??

      Where are the terrorists?
      This is 2 BORDERS, and allot of International Airlines.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Aug 2019 @ 4:29pm

        Re: Re: I dont think anyone has brought this up

        What are your above numbers? I'm confused. Are these in the trillions? you know, millions, billions, trillions? ..?

        reply to this | link to this | view in chronology ]


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