Petition for Writ of Certiorari — United States, Petitioner v. Miguel Angel Cano
Supreme Court briefJan 29, 2021
Ask Donna
What actually matters in this document.
Text
No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
MIGUEL ANGEL CANO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General
FRANCESCO VALENTINI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Ninth Circuit erred in concluding that
the scope of a search of an electronic device under the
border-search exception to the Fourth Amendment’s
warrant requirement is limited solely to digital contraband on the device itself, and cannot include evidence of
physical smuggling or other border-related crimes.
(I)
RELATED PROCEEDINGS
United States District Court (S.D. Cal.):
United States v. Cano, No. 3:16-cr-1770-BTM-1
(May 1, 2017)
United States Court of Appeals (9th Cir.):
United States v. Cano, No. 17-50151 (Aug. 16, 2019)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Constitutional provision involved................................................ 2
Statement ...................................................................................... 2
Reasons for granting the petition ............................................. 12
A. The Ninth Circuit’s decision is incorrect ...................... 13
B. The question presented warrants this Court’s
review ............................................................................... 22
Conclusion ................................................................................... 28
Appendix A — Court of appeals opinion (Aug. 16, 2019)...... 1a
Appendix B — District court order denying motion to
suppress and motion for return of
property (Nov. 23, 2016) ........................... 43a
Appendix C — Court of appeals order (Sept. 2, 2020) ........ 60a
TABLE OF AUTHORITIES
Cases:
Almeida-Sanchez v. United States,
413 U.S. 266 (1973)................................................................ 8
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ............ 27
Boyd v. United States, 116 U.S. 616 (1886)..................... 9, 21
Brady v. Maryland, 373 U.S. 83 (1963) .............................. 11
Rodriguez v. United States, 575 U.S. 348 (2015)................ 19
United States v. Aigbekaen,
943 F.3d 713 (4th Cir. 2019) ............................................... 23
United States v. Arnold,
533 F.3d 1003 (9th Cir. 2008),
cert. denied, 555 U.S. 1176 (2009) ....................................... 7
United States v. Cotterman,
709 F.3d 952 (9th Cir. 2013),
cert. denied, 571 U.S 1156 (2014) ........................................ 4
(III)
IV
Cases—Continued:
Page
United States v. Flores-Montano,
541 U.S. 149 (2004) .........................................................passim
United States v. Gurr,
471 F.3d 144 (D.C. Cir. 2006),
cert. denied, 550 U.S. 919 (2007) ....................................... 25
United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) ............ 4
United States v. Kolsuz,
890 F.3d 133 (4th Cir. 2018) ..........................9, 10, 12, 22, 23
United States v. Molina-Isidoro,
884 F.3d 287 (5th Cir. 2018) ............................................... 24
United States v. Montoya de Hernandez,
473 U.S. 531 (1985).........................................3, 14, 15, 18, 20
United States v. Ramsey,
431 U.S. 606 (1977).......................................2, 3, 8, 13, 14, 18
United States v. Touset,
890 F.3d 1227 (11th Cir. 2018) ............................................. 4
United States v. Wanjiku,
919 F.3d 472 (7th Cir. 2019) ........................................... 4, 24
United States v. Williams,
942 F.3d 1187 (10th Cir. 2019),
cert. denied, 141 S. Ct. 235 (2020) ......................... 12, 22, 24
Warden v. Hayden, 387 U.S. 294 (1967) ........... 11, 21, 22, 26
Constitution, statutes and rule:
U.S. Const. Amend. IV................................................. passim
21 U.S.C. 952 .................................................................... 2, 6, 7
21 U.S.C. 960 (2012 & Supp. II 2014) ............................ 2, 6, 7
21 U.S.C. 963 ........................................................................ 7
Fed. R. Crim. P. 16 ................................................................ 11
V
Miscellaneous:
Page
U.S. Customs & Border Protection,
U.S. Dep’t of Homeland Security,
CBP Trade and Travel Report,
Fiscal Year 2019 (Jan. 2020),
https://go.usa.gov/xApNG .............................................. 25
In the Supreme Court of the United States
No.
UNITED STATES OF AMERICA, PETITIONER
v.
MIGUEL ANGEL CANO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Acting Solicitor General, on behalf of the United
States, respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
1a-42a) is reported at 934 F.3d 1002. The order of the
court of appeals denying rehearing en banc (App., infra,
60a-83a) is reported at 973 F.3d 966. The order of the
district court (App., infra, 43a-59a) is reported at
222 F. Supp. 3d 876.
JURISDICTION
The judgment of the court of appeals was entered on
August 16, 2019. A petition for rehearing was denied on
September 2, 2020 (App., infra, 60a-61a). On March 19,
2020, this Court extended the time within which to file
any petition for a writ of certiorari due on or after that
(1)
2
date to 150 days from the date of the lower-court judgment, order denying discretionary review, or order
denying a timely petition for rehearing. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but 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. Const. Amend. IV.
STATEMENT
Following a mistrial and retrial before a jury in the
Southern District of California, respondent was convicted on one count of importing cocaine into the United
States, in violation of 21 U.S.C. 952 and 21 U.S.C. 960
(2012 & Supp. II 2014). Judgment 1. Respondent was
sentenced to 54 months of imprisonment, to be followed
by three years of supervised release. Judgment 2-3.
The court of appeals reversed the district court’s denial
of respondent’s pretrial motion to suppress and vacated
respondent’s conviction. App., infra, 1a-42a.
1. The “ ‘border search’ exception” is a “longstanding, historically recognized exception to the Fourth
Amendment’s general principle that a warrant be obtained” for a search. United States v. Ramsey, 431 U.S.
606, 621 (1977). “Time and again, [this Court] ha[s]
stated that ‘searches made at the border, pursuant to
the longstanding right of the sovereign to protect itself
3
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.’ ” United States
v. Flores-Montano, 541 U.S. 149, 152-153 (2004) (quoting Ramsey, 431 U.S. at 616). The Court has observed
that “[t]h[e] longstanding recognition that searches at
our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as
the Fourth Amendment itself.” Ramsey, 431 U.S. at
619. And it has explained that “[b]order searches
* * * , from before the adoption of the Fourth Amendment, have been considered to be ‘reasonable’ by the
single fact that the person or item in question had entered into our country from outside.” Ibid.
That history reflects an understanding that “the
Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the
interior.” United States v. Montoya de Hernandez,
473 U.S. 531, 538 (1985). “The Government’s interest in
preventing the entry of unwanted persons and effects
is at its zenith at the international border.” FloresMontano, 541 U.S. at 152. At the same time, “the expectation of privacy [is] less at the border than in the
interior.” Montoya de Hernandez, 473 U.S. at 539.
Consequently, “the Fourth Amendment balance between the interests of the Government and the privacy
right of the individual is * * * struck much more favorably to the Government at the border.” Id. at 540.
This Court has accordingly made clear that “[r]outine searches of the persons and effects of entrants are
not subject to any requirement of reasonable suspicion,
probable cause, or warrant.” Montoya de Hernandez,
473 U.S. at 538. It has held, for example, that “the Government’s authority to conduct suspicionless inspections
4
at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.” FloresMontano, 541 U.S. at 155. In turn, every court of appeals to consider the question has recognized that the
border-search doctrine permits warrantless searches
of electronic devices at the border, including at least
some searches undertaken without any particularized
suspicion. See, e.g., United States v. Touset, 890 F.3d
1227, 1232 (11th Cir. 2018); United States v. Cotterman, 709 F.3d 952, 960-961 & n.6, 967 (9th Cir. 2013)
(en banc), cert. denied, 571 U.S. 1156 (2014); United
States v. Ickes, 393 F.3d 501, 505-506 (4th Cir. 2005);
see also United States v. Wanjiku, 919 F.3d 472, 485
(7th Cir. 2019) (collecting cases illustrating that “no
circuit court * * * has required more than reasonable
suspicion” for any type of search of an electronic device
at the border).
2. Respondent is a Mexican citizen and lawful permanent resident of the United States who, in 2016,
moved away from his family to live in Mexico. App., infra, 3a. While there, he stayed with a cousin, Jose Medina, and made six trips to the United States that summer, some as short as 30 minutes. Ibid. When he
crossed into the United States on those trips, he was
twice referred for a continuation of the initial border inspection, commonly known as secondary inspection, but
no contraband was found on those occasions. Ibid.
In July 2016, respondent sought to enter the United
States from Mexico through the San Ysidro, California,
port of entry just north of Tijuana. App., infra, 3a.
During an initial inspection, respondent told officers of
U.S. Customs and Border Protection (CBP), a component of the Department of Homeland Security (DHS),
that he was “living in Mexico, working in San Diego, but
5
going to [Los Angeles] on that day.” Ibid. He was randomly referred to secondary inspection, where a drug
dog alerted to his trunk’s spare tire. Ibid. A CBP officer removed the spare tire and discovered 14 vacuumsealed packages containing nearly 31 pounds of cocaine.
Ibid.; see C.A. Supp. E.R. 5-7 (photographs).
Respondent was arrested, and CBP officers seized
his cell phone. App., infra, 3a. Two DHS Homeland
Security Investigations (HSI) agents arrived on the
scene. Ibid. One agent conducted a “brief [ ]” manual
(technologically unaided) search of respondent’s cell
phone, for the dual purposes of “find[ing] some brief investigative leads in the current case” and “see[ing] if
there’s evidence of other things coming across the border.” Id. at 3a-4a. The agent noticed a “lengthy call
log” but no text messages. Id. at 4a.
The HSI agents then interviewed respondent, who
“waived his Miranda rights and agreed to talk.” App.,
infra, 4a. Respondent denied knowledge of the cocaine
found in his truck and stated—contrary to his earlier
statement that he was headed to Los Angeles—that he
was traveling to San Diego to look for work at a carpet
store in Chula Vista. Ibid. He was unable, however, to
provide the name or address of that store, and “did not
have his flooring tools with him in his pickup truck.”
Ibid. When asked about the absence of text messages
on his cell phone, he responded that he had erased them
on the advice of his cousin, “just in case” he was pulled
over in Mexico and the Mexican police checked the
phone. Ibid.
While one agent continued the interview, the other
agent conducted a second manual search of respondent’s cell phone, browsing the call log and writing down
some of the phone numbers. App., infra, 4a-5a. As he
6
did so, the agent noticed that, while respondent had
been at the port of entry, the phone had received two
new text messages, from a sender named “Jose.” Id. at
5a; see 10/26/16 Tr. 155 (D. Ct. Doc. 200 (June 6, 2017)).
The agent photographed those messages, the first of
which read, “Good morning,” and the second of which
read, “Primo, are you coming to the house?” App., infra, 5a; see C.A. Supp. E.R. 11 (photograph).
The agents then conducted a more sophisticated
search of respondent’s phone (called a “logical download”), using software that allowed the agents to access
text messages, contacts, call logs, media, and application data and to choose which data to download. App.,
infra, 5a. The software did not enable agents to access
data stored in third-party applications. Ibid. And it did
not allow access to encrypted data or otherwise “provide information beyond what a person would see by
manually searching the phone.” C.A. E.R. 38; see id. at
130-131, 139; Gov’t C.A. Br. 16. The logical download of
respondent’s phone did not uncover any additional sent
or received messages. App., infra, 5a.
The agents later determined that none of the phone
numbers in the phone’s call log corresponded to a carpet
store in San Diego. App., infra, 5a. Approximately two
weeks after respondent’s arrest, the agents obtained a
warrant to search the cell phone and conducted an additional search. Id. at 6a n.1. The results of that later
search are not at issue here. See C.A. E.R. 214-217;
Gov’t C.A. Br. 19 n.9.
3. A federal grand jury in the Southern District of
California returned an indictment charging respondent
with one count of unlawfully importing cocaine, in violation of 21 U.S.C. 952 and 21 U.S.C. 960 (2012 & Supp. II
2014); and one count of conspiring to do so, in violation
7
of 21 U.S.C. 952 and 963 and 21 U.S.C. 960 (2012 & Supp.
II 2014). Indictment 1-2. The government later voluntarily dismissed the conspiracy charge. C.A. E.R.
213-214; 16-cr-1770 Docket entry No. 55 (Oct. 26, 2016).
Before trial on the cocaine-importation count, respondent moved to suppress all evidence obtained from
the searches of his cell phone at the border. App., infra,
5a, 43a, 45a. Following an evidentiary hearing, the district court denied respondent’s motion. Id. at 43a-59a.
The court found that the manual searches of respondents’ cell phone were “clearly permissible” under thenexisting Ninth Circuit precedent. Id. at 53a (citing
United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008),
cert. denied, 555 U.S. 1776 (2009)). The district court
additionally found that the subsequent logical download
was permissible because the agents had “at least reasonable suspicion” to support it. Ibid. The court noted
in particular that “[t]he agents had reason to believe
that [respondent] used his cell phone as an instrumentality of the crime.” Id. at 53a-54a.
The case proceeded to trial, which resulted in a hung
jury and a mistrial. App., infra, 8a. At respondent’s
second trial, the government introduced evidence obtained from the border searches of respondent’s cell
phone to establish three facts: (1) text messages had
been deleted from the phone, see C.A. E.R. 612-613,
668-669, 688-689; (2) the call log did not reflect any calls
to carpet stores in the San Diego area, see id. at
685-688; and (3) respondent’s phone had received the
two text messages from his cousin while respondent was
at the port of entry, see id. at 688-689; C.A. Supp. E.R.
11. The jury found respondent guilty, and he was sentenced to 54 months of imprisonment. App., infra, 8a;
Judgment 2.
8
4. The court of appeals reversed the district court’s
denial of respondent’s motion to suppress and vacated
his conviction. App., infra, 1a-42a. As relevant here, the
court of appeals concluded that, notwithstanding the
border-search doctrine, the searches of respondent’s
cell phone at the border violated the Fourth Amendment. Id. at 9a-31a.
The court of appeals recognized that “[b]order
searches constitute a historically recognized exception
to the Fourth Amendment’s general principle that a
warrant be obtained.” App., infra, 13a (citation and internal quotation marks omitted). It further recognized
that “border searches typically do not require any particularized suspicion, so long as they are ‘routine inspections and searches of individuals or conveyances seeking to cross our borders.’ ” Ibid. (quoting AlmeidaSanchez v. United States, 413 U.S. 266, 272 (1973)).
“Such searches,” the court acknowledged, “are ‘reasonable simply by virtue of the fact they occur at the border.’ ” Ibid. (quoting Ramsey, 431 U.S. at 616). And the
court rejected arguments by respondent and an amicus
that the border-search doctrine is categorically inapplicable to searches of cell phones or that, in the alternative, a warrantless search of a cell phone is so intrusive
that it requires probable cause. Id. at 15a-20a.
The court of appeals nevertheless concluded that the
border searches of respondent’s cell phone “violated the
Fourth Amendment” on the theory that they “exceeded
the permissible scope of a border search.” App., infra,
2a; see id. at 21a-31a. The court took the view that the
border-search doctrine does not encompass even
“searches for evidence that would aid in prosecuting
past and preventing future border-related crimes.” Id.
at 22a. Instead, according to the court, “the border
9
search exception authorizes warrantless searches of a
cell phone only to determine whether the phone contains contraband.” Id. at 26a. The court reasoned that
“ ‘detection of . . . contraband is the strongest historic
rationale for the border-search exception’ ” and that
searches of electronic devices at the border “cannot be
‘justified by the particular purposes served by the
[border-search] exception’ ” unless “limited in scope to
a search for digital contraband” on the device itself. Id.
at 2a, 24a, 26a (brackets and citation omitted).
The court of appeals emphasized that, under its interpretation of the Fourth Amendment, “the proper
scope of a border search” does not “include the power
to search for evidence of contraband that is not present
at the border” or for “evidence of past or future borderrelated” criminal activity. App., infra, 24a. The court
relied on Boyd v. United States, 116 U.S. 616, 622-623
(1886), which it characterized as providing “[t]he classic
statement” of “ ‘a sharp distinction between searches for
contraband and those for evidence that may reveal the
importation of contraband.’ ” App., infra, 25a (citation
omitted). The court acknowledged that one consequence
of drawing such a line in this context would be that “the
detection-of-contraband justification would rarely seem
to apply to an electronic search of a cell phone outside
the context of child pornography.” Id. at 31a n.13.
The court of appeals additionally acknowledged that
its digital-contraband-only limitation conflicted with the
Fourth Circuit’s decision in United States v. Kolsuz,
890 F.3d 133 (2018), which had explained that the bordersearch doctrine authorized border officials who had
found firearms parts in an outbound international traveler’s luggage to search his cell phone for “evidence of
10
the export violation they had already detected” and “ ‘information related to other ongoing attempts to export
illegally [the] firearm parts.’ ” Id. at 143 (citation omitted); see App., infra, 23a. The Ninth Circuit in this case
expressly “disagree[d]” with the Fourth Circuit’s determination that the border-search doctrine “ ‘is broad
enough to accommodate not only the direct interception
of contraband as it crosses the border, but also the prevention and disruption of ongoing efforts to export contraband illegally’ ” and with the Fourth Circuit’s “approv[al] [of ] the search for further evidence that [the
defendant in Kolsuz] was smuggling weapons.” App.,
infra, 24a (quoting Kolsuz, 890 F.3d at 143) (emphasis
omitted).
In holding the border searches here unlawful, the
court of appeals adhered to circuit precedent under
which at least the initial manual searches of the phone
were routine searches that did not require reasonable
suspicion. App., infra, 18a, 27a. But the court concluded that the agents exceeded the permissible scope
of a border search when they wrote down phone numbers from the phone’s call log and photographed the two
messages that respondent had received, steps that the
court stated “have no connection whatsoever to digital
contraband.” Id. at 27a. And the court took the view
that, whether or not the “logical download” search was
the sort of search that it had previously deemed to require reasonable suspicion—an issue that it did not
decide—suspicion “that [respondent’s] phone would
contain evidence leading to additional drugs” did not
suffice to justify the search. Id. at 5a, 31a; see id. at
30a-31a & n.12. Instead, the court adopted a rule requiring “reasonable suspicion that the digital data in the
phone” itself “contained contraband.” Id. at 31a.
11
The court of appeals went on to conclude that admission of the evidence discovered in this case was not “allowed by the good faith exception” to the exclusionary
rule. App., infra, 31a-33a. And it rejected respondent’s
arguments that the government had subsequently violated his rights under Brady v. Maryland, 373 U.S. 83
(1963), and Federal Rule of Criminal Procedure 16.
App., infra, 34a-42a.
5. The court of appeals denied the government’s petition for rehearing en banc. App., infra, 60a-61a.
Judge Bennett, joined by five other judges, dissented.
Id. at 61a-83a.
The dissenting judges observed that “[t]he panel decision runs headlong into decades of Supreme Court
precedent and deviates from the historical understanding of the purpose of the border search exception.”
App., infra, 67a. They further observed that this Court
“has never questioned the scope of the border search
exception and ‘[t]ime and again[ ]’ confirmed the broad
authority of the sovereign at the border.” Id. at 70a
(quoting Flores-Montano, 541 U.S. at 152 (first set of
brackets in original)). And they explained that “the inherent power of the sovereign to protect itself, or the
border,” which underpins the border-search doctrine,
“is not limited to searching for contraband like child
pornography.” Id. at 77a.
The dissenting judges additionally observed that the
“distinction between evidence and contraband created
by Boyd,” on which the panel had relied, was repudiated
by this Court in Warden v. Hayden, 387 U.S. 294, 301
(1967). App., infra, 78a. They also noted that, “when
filtered through the Fourth Amendment lens of reasonableness,” the panel’s limitation leads to “distinctions”
that “make no sense.” Id. at 78a-79a. In particular,
12
they identified the illogic of allowing border officials “to
manually look for child pornography on a phone” while
barring them from searching for “evidence of: (1) intent
to commit terrorist acts, (2) inadmissibility of the traveler to the United States, (3) other crimes, or even
(4) evidence of other contraband.” Id. at 79a.
Finally, the dissenting judges observed that the
panel’s decision conflicts in various respects with decisions of other courts of appeals. App., infra, 73a-75a,
78a (discussing decisions of Fourth, Fifth, Seventh,
Tenth, Eleventh, and D.C. Circuits). And the dissent
emphasized in particular that the panel’s approach limiting the scope of searches under the border-search doctrine had “been soundly rejected by at least two other
circuits,” id. at 67a—the Fourth Circuit’s decision in
United States v. Kolsuz, supra, and the Tenth Circuit’s
subsequent decision in United States v. Williams,
942 F.3d 1187 (2019), cert. denied, 141 S. Ct. 235 (2020).
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s erroneous conclusion that “the
border search exception authorizes warrantless searches
of a cell phone only to determine whether the phone contains contraband,” and does not even permit “a warrantless search for evidence of past or future borderrelated crimes,” App., infra, 24a, 26a, warrants this
Court’s review. Despite acknowledging that “[b]order
searches constitute a ‘historically recognized exception
to the Fourth Amendment’s general principle that a warrant be obtained,’ ” and that routine “border searches typically do not require any particularized suspicion,” id. at
13a (citation omitted), the court confined the bordersearch doctrine in the context of electronic devices solely
to detecting “digital contraband”—essentially, “child
pornography”—present on the device, id. at 16a, 21a,
13
26a-27a. That cramped view of the doctrine cannot be
reconciled with the language or logic of this Court’s decisions, or with the doctrine’s underpinnings, and it produces illogical and unworkable results.
In imposing its newly minted regime on the Nation’s
largest circuit, the Ninth Circuit has created an entrenched circuit conflict on an important and recurring
Fourth Amendment issue. The court’s decision confuses and disrupts the day-to-day work of border officials who, nationwide, inspect hundreds of millions of
arriving travelers and examine tens of thousands of
electronic devices each year. This Court should grant
review and reverse.
A. The Ninth Circuit’s Decision Is Incorrect
The Ninth Circuit in this case concluded that border
officials violated the Fourth Amendment when, after discovering nearly 31 pounds of cocaine concealed in respondent’s truck as he sought to enter the United States,
they conducted warrantless searches of his cell phone for
evidence of that border-related crime and any related potential smuggling activity. The court arrived at that conclusion only by imposing novel limitations on the bordersearch doctrine that have no sound basis in this Court’s
precedents or the doctrine’s foundations, and by reviving
an arbitrary and untenable distinction between contraband and “mere evidence of crime” (App., infra, 23a) that
this Court long ago repudiated.
1. As previously explained (pp. 2-4, supra), the
“ ‘border search’ exception” to the Fourth Amendment’s
warrant requirement is a “longstanding, historically
recognized exception to the Fourth Amendment’s general principle that a warrant be obtained” for a search.
United States v. Ramsey, 431 U.S. 606, 621 (1977). This
Court has “[t]ime and again * * * stated that ‘searches
14
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.’ ” United States v. Flores-Montano,
541 U.S. 149, 152-153 (2004) (quoting Ramsey, 431 U.S.
at 616) (emphasis added). As the Court has observed,
the doctrine “has a history as old as the Fourth Amendment itself.” Ramsey, 431 U.S. at 619. And it reflects
that “the Fourth Amendment balance between the interests of the Government,” which are at their apex,
“and the privacy right of the individual,” which is diminished, is “struck much more favorably to the Government at the border.” United States v. Montoya de
Hernandez, 473 U.S. 531, 540 (1985); see id. at 539;
Flores-Montano, 541 U.S. at 152.
This Court’s decisions have consistently emphasized the expansive scope of the border-search doctrine. And the Court has repeatedly upheld warrantless border searches in decisions that demonstrate the
doctrine’s breadth. For example, in United States v.
Ramsey, supra, the Court held that the doctrine authorized customs officials to open and inspect several
envelopes sent by “international letter-class mail” from
Thailand that they suspected might contain illicit drugs.
431 U.S. at 607; see id. at 616-625. The Court rejected
the D.C. Circuit’s view that “the Fourth Amendment
forbade the opening of such mail without probable cause
and a search warrant.” Id. at 608.
In United States v. Montoya de Hernandez, supra,
the Court held that the Fourth Amendment allowed
border officials to detain a traveler whom they reasonably suspected of smuggling drugs in her “alimentary
15
canal” and who refused an x-ray. 473 U.S. at 533; see
id. at 536-544. The Court reaffirmed that “[r]outine
searches of the persons and effects of entrants are not
subject to any requirement of reasonable suspicion,
probable cause, or warrant.” Id. at 538. And it rejected the lower court’s view that officials exceeded the
scope of law-enforcement authority that the Fourth
Amendment permits at the border by detaining the
traveler for 16 hours, well “beyond the scope of a routine customs search and inspection,” based on their
reasonable suspicion of smuggling. Id. at 541.
Most recently, in United States v. Flores-Montano,
supra, the Court unanimously held that the bordersearch doctrine authorized border officials, without any
particularized suspicion, “to remove, disassemble, and
reassemble” the gas tank of a vehicle arriving at a port
of entry, in which they ultimately found 81 pounds of
marijuana. 541 U.S. at 155; see id. at 150, 152-156. The
Court rejected the Ninth Circuit’s view that such an “interference with [the] motorist’s possessory interest” required reasonable suspicion, finding that the search was
“justified by the Government’s paramount interest in
protecting the border.” Id. at 155.
2. As the dissent from the denial of rehearing in this
case observed, this Court’s precedents demonstrate
that the border searches at issue here did not violate the
Fourth Amendment. App., infra, 75a-79a. After finding nearly 31 pounds of cocaine in respondent’s truck,
the border agents conducted “manual searches” of respondent’s cell phone, “briefly search[ing] [his] phone”
for text messages and “open[ing] the phone’s call log.”
Id. at 27a; see id. at 4a-5a. The agents also photographed
two messages they found and wrote down several phone
numbers appearing in the call log. Ibid. Finally, they
16
conducted a logical download of the phone, which enabled them to “access text messages, contacts, call logs,
media, and application data on [the] phone,” id. at 5a,
but which did not enable them to access “information
beyond what a person would see by manually searching
the phone,” such as “data stored within third-party applications” or encrypted or deleted data. Ibid.; C.A.
E.R. 38; see C.A. E.R. 130-131, 138; Gov’t C.A. Br. 16.
The court of appeals correctly recognized that, under
this Court’s decisions permitting “routine searches
* * * at the border without any showing of suspicion,”
no particularized suspicion was required for the agents
to lawfully browse the phone’s contents manually. App.,
infra, 12a; see id. at 27a. It erred, however, in its conclusion that their searches crossed some boundary into
unlawfulness simply because the agents documented
certain things that manual browsing had already revealed, by taking a picture of two messages and jotting
down some phone numbers that were not related to
child pornography (or whatever else, if anything, the
Ninth Circuit might deem to be “digital contraband”).
It likewise erred in invalidating the subsequent logicaldownload search. Even assuming that such a search required some level of particularized suspicion, the search
here was lawful because the agents had “at least reasonable suspicion” that the contents of respondent’s
phone might illuminate border-related unlawful activity
based on the 31 pounds of cocaine found in his possession. Id. at 53a.
The Ninth Circuit’s novel restriction on the scope of
the border-search doctrine is insupportable, as consideration of the drug-smuggling context alone well illustrates. Nothing in this Court’s precedents suggests, for
example, that had border officials here instead found a
17
written list of phone numbers on the truck’s passenger
seat, they would violate the Fourth Amendment by copying those phone numbers, or sending them to other
law-enforcement officials. This Court’s precedents likewise would not preclude border officials from photographing, for further investigation, a secret compartment ideally suited to carrying drugs, but that is not itself illegal to have in a car crossing the border. Those
decisions would also presumably permit an official to
photocopy the hotel-reservation confirmation found on
a known drug kingpin’s associate, even if he is not currently smuggling (or suspected of currently smuggling)
anything. The Court’s precedents similarly permitted
the agent’s actions here.
3. The Ninth Circuit’s unprecedented limitation on
the scope of the border-search doctrine is based on a
two-step chain of reasoning, both steps of which are
flawed. First, invoking its own precedent, the court announced that a “border search must be conducted to enforce importation laws.” App., infra, 15a (citation and
internal quotation marks omitted). Then, proceeding
from that premise, the court of appeals concluded that
all “cell phone searches at the border, whether manual
or forensic, must be limited in scope to a search for digital contraband” on the device itself—not for “mere evidence” of past, present, or future efforts to transport
physical contraband or otherwise violate the laws enforced at the border. Id. at 2a, 23a; see id. 23a-26a, 29a.
The Ninth Circuit’s starting premise of contrabandonly searches has no sound basis in this Court’s precedents. And even assuming arguendo that the premise
were well-founded, the court of appeals’ conclusions
would not follow, and they result in an unworkable rule
that independently contradicts this Court’s decisions.
18
a. This Court has never adopted the Ninth Circuit’s
premise that the border-search doctrine exists solely to
facilitate the direct discovery of contraband. App., infra, 2a, 14a. It has instead described the doctrine in
much broader terms.
The Court has explained that, “from before the adoption of the Fourth Amendment,” border searches “have
been considered to be ‘reasonable’ by the single fact
that the person or item in question had entered into our
country from outside.” Ramsey, 431 U.S. at 619. “It is
axiomatic that the United States, as sovereign, has the
inherent authority to protect, and a paramount interest in protecting, its territorial integrity.” FloresMontano, 541 U.S. at 153. That “interest in preventing
the entry of unwanted persons and effects is at its zenith at the international border,” id. at 152, where an individual’s expectation of privacy is also diminished. See
Montoya de Hernandez, 473 U.S. at 539-540.
The government’s interest in “protecting[ ] its territorial integrity,” Flores-Montano, 541 U.S. at 153, undoubtedly encompasses preventing the entry of contraband, digital or physical, and the Court’s leading bordersearch cases happened to involve drug smuggling. But
nothing in the language or logic of those decisions suggests that the United States’ sovereign prerogative to
safeguard its borders is limited to interdicting illicit
goods. At a minimum, the doctrine also encompasses,
for example, searches aimed at uncovering evidence of
other border-related unlawful activity, whether completed or ongoing. Moreover, this Court has explicitly
recognized that the “Government’s interest” includes
not only “preventing the entry of unwanted * * * effects,” but also “unwanted persons.” Id. at 152. Surely,
19
the government at least has the lesser-included sovereign power to determine whether someone about to enter the United States is currently engaging, plans later
to engage, or has in the past engaged in transnational
violations of the law, as well as to discern the contours
of that unlawful activity. The United States is accordingly entitled as “the sovereign to protect itself by stopping and examining persons and property crossing into
this country,” ibid., to ensure that it is sufficiently informed about a particular border-crosser. *
If the border-search doctrine were truly limited entirely to interdiction of contraband, then the Fourth
Amendment would potentially impose limitations even
on the scope of the questions that border officials could
ask of someone seeking entry before allowing him to
proceed. Cf. Rodriguez v. United States, 575 U.S. 348,
350 (2015) (“[A] police stop exceeding the time needed
to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”). The court of appeals, however, could point to
no decision of this Court construing the doctrine to contain such a limitation. As the dissent from the denial of
rehearing observed, “[i]n only one instance has th[is]
Court limited the border search doctrine,” namely,
when border officials detained an arriving passenger
The Ninth Circuit’s decision in this case did not specifically address the government’s direct national-security and immigrationenforcement interests, and the government does not construe the
panel decision to foreclose reliance on those grounds to sustain border searches of cell phones in appropriate circumstances. If the
opinion were so construed, its inconsistency with this Court’s precedent would be even more patent. The court of appeals’ failure to
address those interests, however, underscores the incompleteness
of the court’s view of the governmental interests that the bordersearch doctrine serves.
*
20
for approximately 16 hours on suspicion that she was
concealing a controlled substance in her “alimentary
canal.” App., infra 68a, 76a (quoting Montoya de Hernandez, 473 U.S. at 537). And even then, the Court
“did not narrow the scope” of the border-search doctrine but “only increased the level of suspicion necessary.” Id. at 76a. The Ninth Circuit’s decision here thus
“reads the sovereign’s interest” underlying the doctrine
“far too narrowly.” Id. at 77a.
b. Even assuming the erroneous premise that border
searches must be justified by preventing the entry of
contraband (or evasion of customs duties), the second
step of the Ninth Circuit’s reasoning—that any search of
an electronic device must be limited to “digital contraband” stored on the device—is independently flawed.
App., infra, 2a, 26a-27a, 29a. Authority to search at
least for evidence of a planned or ongoing attempt to
smuggle drugs or other contraband is a corollary of border officials’ undisputed authority to search for the
drugs or contraband itself.
By searching an electronic device for evidence about
smuggling, for example, border officials may uncover
and disrupt a smuggling scheme before it succeeds. Although the border officials in this case had already discovered cocaine in respondent’s vehicle, in other circumstances, inspection of a device may provide the critical clue that a traveler is transporting drugs, prompting a routine but discretionary physical search that the
officials might not otherwise have conducted. Or border
officials might obtain from the traveler’s device critical
evidence indicating that, although the traveler’s own
car does not contain drugs, it is the lead car in a drugsmuggling convoy, and the officials should search the
21
one behind it. And even when border officials have already discovered drugs (or other contraband), information on the traveler’s phone may help them ascertain
where the traveler is headed, enabling the rapid interdiction of other drugs (which may already have made it
past the border) and quick apprehension (or surveillance) of the smugglers before the trail grows cold.
In concluding that the border-search doctrine authorizes only a search for contraband itself, and not
even evidence of contraband-related crimes, the Ninth
Circuit relied in substantial part on language in Boyd v.
United States, 116 U.S. 616 (1886). App., infra, 25a-26a.
As the dissent from the denial of rehearing explained,
however, this Court more than 50 years ago “rejected
the distinction between evidence and contraband created by Boyd.” Id. at 78a. Specifically, the Court in
Warden v. Hayden, 387 U.S. 294 (1967), expressly rejected the “discredited” proposition that courts had derived from Boyd that the government may not “seize evidence simply for the purpose of proving crime.” Id. at
306; see id. at 302-309. The Court observed that
“[n]othing in the language of the Fourth Amendment
supports the distinction between ‘mere evidence’ and
instrumentalities, fruits of crime, or contraband.” Id. at
301. And the Court noted that, as a safeguard of privacy
interests, a “mere evidence” rule is no less arbitrary
than a rule limiting searches to “ ‘even-numbered days
of the month.’ ” Id. at 309 (citation omitted).
The Court in Hayden also highlighted the practical
problems with such a distinction, observing that “[t]he
‘mere evidence’ limitation ha[d] spawned exceptions so
numerous and confusion so great * * * that it is questionable whether it affords meaningful protection” at
22
all. 387 U.S. at 309. The Ninth Circuit’s distinction likewise invites intractable uncertainty and leads to untenable results—as the facts of this case well illustrate.
The court held that the border officials in this case could
search text-message and call-log applications on respondent’s phone because the court (correctly) understood those to be possible repositories of child pornography. Yet it concluded that the officials, examining
those very areas of the phone, overstepped the bordersearch doctrine’s boundaries by recording the basic
facts they found there: photographing two messages
consisting of nine words, C.A. Supp. E.R. 11, and writing down a handful of phone numbers in the call log,
App., infra, 27a, that constituted potential evidence of
in-process smuggling, but were not digital contraband.
No Fourth Amendment principle supports that arbitrary and counterintuitive limitation.
B. The Question Presented Warrants This Court’s Review
The court of appeals’ decision, and subsequent denial
of en banc review, creates a circuit conflict on an issue
with considerable practical importance for border officials’ inspection of the hundreds of millions of travelers
at U.S. ports of entry each year. It accordingly warrants this Court’s review.
1. The panel itself acknowledged that its decision is
“in tension” with the Fourth Circuit’s decision in United
States v. Kolsuz, 890 F.3d 133 (2018). App., infra, 23a;
see id. at 26a. As the dissent from denial of rehearing en
banc observed, however, the panel’s decision is in fact in
full-blown conflict not only with Kolsuz, but also with the
Tenth Circuit’s later decision in United States v. Williams, 942 F.3d 1187 (2019), cert. denied, 141 S. Ct. 235
(2020). The Fourth and Tenth Circuits applied the
border-search doctrine to non-manual electronic-device
23
searches that they deemed intrusive enough to require
reasonable suspicion (as the Ninth Circuit assumed that
the logical-download search here might), and recognized that the border-search doctrine applied even
though the reasonable suspicion did not suggest the
presence of digital contraband on the device itself.
In Kolsuz, border officials at Dulles airport discovered dozens of firearm parts in the luggage of a passenger seeking to board an outbound international flight,
and they arrested the traveler and conducted a warrantless “forensic” search of his cell phone. 890 F.3d at
136. The Fourth Circuit recognized that the search of
the phone fell within the border-search doctrine. See
id. at 141-153. In doing so, it specifically rejected the
defendant’s contention that the doctrine is “limited to
intercepting contraband as it crosses the national border” and would not encompass searching his cell phone
after the firearm parts had already been discovered and
he had been arrested. Id. at 143; see id. at 143-144.
The Fourth Circuit explained that “[t]he justification
behind the border search exception is broad enough to
accommodate not only the direct interception of contraband as it crosses the border, but also the prevention
and disruption of ongoing efforts to export contraband
illegally, through searches initiated at the border.”
Kolsuz, 890 F.3d at 143-144. The court accordingly
found that, “[b]ecause the forensic search of [the defendant’s] phone was conducted at least in part to uncover information about an ongoing transnational
crime, * * * it ‘fit[] within the core of the rationale’ underlying the border search exception.’ ” Id. at 144 (citation omitted); see United States v. Aigbekaen, 943 F.3d
713, 721 (4th Cir. 2019) (reiterating that the bordersearch doctrine allows searches with “some nexus to the
24
border search exception’s purposes of protecting national security, collecting duties, blocking the entry of
unwanted persons, or disrupting efforts to export or import contraband,” but suppressing evidence premised
on reasonable suspicion of “domestic crimes” (emphasis
omitted)).
Similarly, after the Ninth Circuit panel issued the
opinion below, the Tenth Circuit held in Williams that
the border-search doctrine authorized a warrantless
“forensic” search of a traveler’s laptop that was not a
search for digital contraband, specifically rejecting the
argument that “border agents are tasked exclusively
with upholding customs laws and rooting out the importation of contraband.” 942 F.3d at 1190-1191. The
Tenth Circuit’s interpretation and application of this
Court’s border-search precedents, like the Fourth Circuit’s, thus refutes the crabbed view of the Ninth Circuit. Had circumstances analogous to those at issue in
this case occurred at a port of entry within the Fourth
or Tenth Circuits, there is little question that both the
manual search and the logical download of the importer’s cell phone would have been upheld.
Even beyond that direct conflict, the dissent from
the denial of rehearing en banc correctly observed that
various aspects of the panel’s decision are in tension
with the decisions of additional circuits. See App., infra, 73a-75a, 78a. That tension is especially acute with
respect to recent Fifth and Seventh Circuit decisions,
which indicate that, even as to border searches of electronic devices for which those circuits would require
particularized suspicion, it need not be suspicion of digital contraband in particular. See id. at 75a (citing
United States v. Molina-Isidoro, 884 F.3d 287, 291-292
(5th Cir. 2018), and United States v. Wanjiku, 919 F.3d
25
472, 485-488 (7th Cir. 2019)). The D.C. Circuit has similarly refused to draw a line between contraband and
evidence of unlawful activity, although in a case that did
not involve the search of an electronic device. See
United States v. Gurr, 471 F.3d 144, 149 (D.C. Cir.
2006), cert. denied, 550 U.S. 919 (2007); App. infra, 78a.
In those circuits as well, the conviction in this case likely
would have been affirmed.
2. The panel’s decision threatens to disrupt frequent
and important government operations to protect our
Nation’s border. At a minimum, the decision creates
needless uncertainty—especially in the Ninth Circuit,
whose geographic reach encompasses an outsized share
of DHS’s border-safeguarding work.
In fiscal year 2019, border officials processed more
than 410 million travelers at air, land, and sea ports of entry. See CBP, DHS, CBP Trade and Travel Report, Fiscal Year 2019, at 2 (Jan. 2020), https://go.usa.gov/xApNG.
A particularly large share of that burden fell on border
officials in the Ninth Circuit, where the decision below is
now controlling precedent. DHS has informed this Office that ports of entry in the Ninth Circuit accounted for
more than 146 million of those entries, representing
more than 35% of the nationwide total.
This Office has also been informed by DHS that, during that same period, border officials conducted approximately 40,913 border searches of electronic devices,
with 19% of those searches occurring in the Ninth Circuit. Such searches of travelers’ electronic devices are
a critical tool that border officials use to detect a variety
of threats to the Nation’s territorial integrity, such as
human trafficking, smuggling cash or contraband,
export-control violations, and other criminal activity.
And although the Ninth Circuit’s decision in this case
26
did not specifically address the government’s interests
in national security and verifying the admissibility of
travelers seeking entry, see p. 19 n.*, supra, if its decision were construed categorically to bar even border
searches premised on those interests, the harm would
be greater still. Cf. App., infra, 62a-63a & n.4, 76a-79a
(Bennett, J., dissenting from the denial of rehearing).
Given the sheer volume of travelers and effects
crossing the border each year and the number of electronic devices border officials find it necessary to inspect, it would be impractical to obtain a judicial warrant whenever an official’s actions would not be objectively justified as a search for digital contraband—a category limited almost exclusively to child pornography,
App., infra, 31a n.13. Moreover, by resurrecting and
extending the “confus[ing]” contraband/evidence distinction from Boyd, Hayden, 387 U.S. at 309, the decision below leaves border officials with little clarity on
when a search might require a warrant. The decision
itself allowed border officials here to search at least
some portions of the phone that the court of appeals
viewed as possible repositories of digital contraband,
but not to photograph text messages or write down
phone numbers that officials saw there. That linedrawing exercise raises vexing questions for border officials and reviewing courts alike.
What if an official in similar circumstances does not
write any phone numbers down, but simply remembers
phone numbers or text messages for purposes of followup investigation? Or what if an official spends more
time reviewing a phone than a reviewing court deems
necessary to verify that it does not contain digital contraband? These and other uncertainties will chill important border-protection activities. This Court has
27
“traditionally recognized that a responsible Fourth
Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the
field be converted into an occasion for constitutional review.” Atwater v. City of Lago Vista, 532 U.S. 318, 347
(2001). “Often enough, the Fourth Amendment has to
be applied on the spur (and in the heat) of the moment,
and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest
or search is made.” Ibid. Those interests are undermined by the Ninth Circuit’s nonintuitive approach
here.
* * * * *
The division of authority and practical difficulties
created by the opinion below are highly unlikely to resolve themselves. The Ninth Circuit has now denied the
government’s request for rehearing en banc on this issue, over the recorded dissent of six judges. See App.,
infra, 61a-83a. The circuit conflict is thus entrenched,
and it has only deepened since the panel rendered its
decision. This Court’s review is necessary to correct the
Ninth Circuit’s outlier course and to restore nationwide
consistency in the standards governing searches of electronic devices at the border.
28
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Acting Solicitor General
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General
FRANCESCO VALENTINI
Attorney
JANUARY 2021
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-50151
D.C. No. 3:16-cr-01770-BTM-1
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
MIGUEL ANGEL CANO, DEFENDANT-APPELLANT
Argued and Submitted: Apr. 10, 2019
Pasadena, California
Filed: Aug. 16, 2019
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
OPINION
Before: SUSAN P. GRABER and JAY S. BYBEE, Circuit Judges, and M. DOUGLAS HARPOOL,* District Judge.
BYBEE, Circuit Judge:
The Honorable M. Douglas Harpool, United States District
Judge for the Western District of Missouri, sitting by designation.
*
(1a)
2a
Defendant-Appellant Miguel Cano was arrested for
carrying cocaine as he attempted to cross into the
United States from Mexico at the San Ysidro Port of Entry. Following his arrest, a Customs and Border Protection official seized Cano’s cell phone and searched it,
first manually and then using software that accesses all
text messages, contacts, call logs, media, and application
data. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone,
the district court held that the searches were valid under the border search exception to the Fourth Amendment’s warrant requirement.
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 officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a
border search. Accordingly, we hold that most of the
evidence from the searches of Cano’s cell phone should
have been suppressed. We also conclude that Cano’s
Brady claims are unpersuasive. Because we vacate
Cano’s conviction, we do not reach his claim of prosecutorial misconduct.
3a
We reverse the district court’s order denying Cano’s
motion to suppress and vacate Cano’s conviction.
I.
THE BACKGROUND
A. The Facts
Defendant-Appellant Miguel Cano worked in the
flooring and carpet installation trade and lived with his
wife and children in the Mission Hills community north
of Los Angeles. In the summer of 2016, however, Cano
moved from Los Angeles to Tijuana, Mexico, where he
stayed with his cousin Jose Medina. While staying
with Medina, Cano crossed the border into the United
States six times, sometimes remaining in the United
States for less than thirty minutes. On two of those
trips, Cano was referred to secondary inspection, but no
contraband was found.
On July 25, 2016, Cano arrived at the San Ysidro Port
of Entry from Tijuana. In primary inspection, Cano
stated that “he was living in Mexico, working in San Diego, but going to LA on that day.” Pursuant to a random Customs and Border Protection (CBP) computer
referral, Cano was referred to secondary inspection,
where a narcotic-detecting dog alerted to the vehicle’s
spare tire. A CBP official removed the spare tire from
the undercarriage of the truck and discovered 14
vacuum-sealed packages inside, containing 14.03 kilograms (30.93 pounds) of cocaine.
Cano was arrested, and a CBP official administratively seized his cell phone. The CBP officials called
Homeland Security Investigations (HSI), which dispatched Agents Petonak and Medrano to investigate.
After arriving, Agent Petonak “briefly” and manually
4a
reviewed Cano’s cell phone, noticing a “lengthy call log”
but no text messages. Agent Petonak later stated that
the purpose of this manual search was “two-pronged”:
“to find some brief investigative leads in the current
case,” and “to see if there’s evidence of other things
coming across the border.”
Agent Petonak proceeded to question Cano, who
waived his Miranda rights and agreed to talk. During
that interview, Cano denied any knowledge of the cocaine. Cano stated that he had moved to Tijuana to
look for work in nearby San Diego, because work was
slow in Los Angeles. He also said he had crossed the
border every day for the previous three weeks looking
for work. He told Agent Petonak that he was headed
to a carpet store in Chula Vista that day to seek work.
When pressed, Cano was not able to provide the name
or address of the store, claiming that he intended to look
it up on Google after crossing the border. Cano also
explained that he did not have his flooring tools with him
in his pickup truck so as to avoid problems with border
crossings; Cano intended to drive to Los Angeles to retrieve his tools if he located work in San Diego.
During the interrogation, Agent Petonak specifically
asked Cano about the lack of text messages on his cell
phone. Cano responded that his cousin had advised
him to delete his text messages “just in case” he got
pulled over in Mexico and police were to check his cell
phone. Cano stated that he erased his messages to
avoid “any problems” with the Mexican police.
While Agent Petonak questioned Cano, Agent
Medrano conducted a second manual search of the cell
phone. Agent Medrano browsed the call log and wrote
5a
down some of the phone numbers on a piece of paper.
He also noticed two messages that arrived after Cano
had reached the border, and he took a photograph of the
messages. The first message stated, “Good morning,” and
the second message stated, “Primo, are you coming to
the house?” Agent Medrano gave all of this information
—the recorded list of calls and the photograph—to Agent
Petonak.
Finally, Agent Medrano conducted a “logical download” of the phone using Cellebrite software. A Cellebrite search enables the user to access text messages,
contacts, call logs, media, and application data on a cell
phone and to select which types of data to download. It
does not, however, allow the user to access data stored
within third-party applications. Agent Medrano typically does not select the option to download photographs.
After Agent Petonak interviewed Cano, he reviewed
the results of the Cellebrite download of Cano’s phone
by Agent Medrano. The Cellebrite results revealed
that Cano had sent no text messages, and it listed all the
calls made by Cano. Agent Petonak later concluded
that none of the phone numbers in the call log corresponded to carpeting stores in San Diego.
B. The Proceedings
Cano was indicted for importing cocaine. Before
trial, Cano moved to suppress any evidence obtained
from Agents Petonak and Medrano’s warrantless searches of his cell phone at the border. The district court
denied Cano’s motion, ruling that the manual searches
and the Cellebrite search of Cano’s phone were valid
6a
border searches. During trial, the government introduced evidence that resulted from the manual searches
of the phone and from Agent Medrano’s Cellebrite
download of the phone. 1
In preparation for trial, Cano indicated his intent to
present a third-party culpability defense claiming that
his cousin, Jose Medina, was responsible for placing the
drugs in Cano’s spare tire without Cano’s knowledge.
Cano proffered evidence that Medina had a key to
Cano’s car and had driven it shortly before Cano’s attempted border crossing, that Medina had a criminal
record including a conviction for cocaine possession,
that Medina was a member of a Chicago-based gang
called the Latin Kings, and that the Latin Kings sold cocaine within the United States and were involved with a
cartel that trafficked drugs across the border.
Following Cano’s implication of Medina, the government contacted Medina and promised him immunity and
immigration papers in exchange for his cooperation.
Medina initially denied being involved with drugs, but
later contacted the government on his own and offered
to help them with the “biggest RICO case” and “drug
Some—but not all—of the evidence was available through alternative channels. For example, the government introduced a call log,
unchallenged by Cano, that the government received from Cano’s
phone company. Similarly, the government later obtained a warrant to search the phone, and an agent conducted further searches.
Because the government introduced at trial much evidence predating those events, and because the government has not argued
that any Fourth Amendment error was harmless, those later events
do not affect our Fourth Amendment analysis of the warrantless
searches. United States v. Rodriguez, 880 F.3d 1151, 1163 (9th Cir.
2018)
1
7a
seizures of 20 to 25 kilograms at a time.”
formation was made available to Cano.
All of this in-
As part of his defense, Cano sought additional discovery from HSI, the Federal Bureau of Investigation
(FBI), and the Drug Enforcement Agency (DEA) regarding: (1) records linking Medina to drug sales, distribution, or trafficking; and (2) records linking the
Latin Kings to drug trafficking from Mexico to Southern
California. The government opposed Cano’s discovery
motion, arguing that the evidence was not material under Federal Rule of Criminal Procedure 16(a)(1)(E)(i)
and that discovery should be limited to HSI, as neither
the DEA nor the FBI had participated in the investigation of Cano. The district court originally overruled
both objections, finding the evidence material under
Rule 16 and exculpatory under Brady v. Maryland, 373
U.S. 83 (1963). The court also reasoned that, because
HSI could inquire of the DEA and FBI if it sought inculpatory evidence, HSI had access to the files and was
required to provide any exculpatory evidence held by
the DEA or FBI.
In response to the court’s discovery order, HSI produced Medina’s immigration file and his Bureau of Prisons record. Agent Petonak also searched for Medina’s
name in two different police clearinghouses, but neither
returned any hits. 2 Both Agent Petonak and the
United States Attorney’s Office (USAO) subsequently
requested information showing a link between the Latin
A police clearinghouse works for the purpose of “deconfliction”
by notifying an agency if another agency has an investigation pending against the same person or item. The DEA and FBI participate
in the two clearinghouses searched by Agent Petonak.
2
8a
Kings and drug trafficking from Mexico from the legal
counsel of both the FBI and DEA. Both agencies denied the requests without providing any explanation or
any indication as to whether the requested information
existed.
Following these attempts, the government moved for
the district court to reconsider its discovery order and
excuse it from discovery relating to files held by the FBI
and DEA. The district court granted the motion to reconsider, finding that the prosecutor did not have access
to the evidence when he was “rebuffed” by agencies over
which he had no control.
The case proceeded to trial and Cano presented his
third-party culpability defense. The first trial resulted
in a hung jury and a mistrial. On retrial, Cano again
relied on his third-party culpability defense. The second trial resulted in Cano’s conviction. This appeal followed, in which Cano raises three issues: (1) whether
the warrantless searches of his cell phone violated the
Fourth Amendment and whether the resulting evidence
should be suppressed; (2) whether the government’s
non-disclosure of materials that may have been held by
the DEA and FBI violated his right to due process under Brady and Federal Rule of Criminal Procedure 16;
and (3) whether the government raised an improper propensity inference in its closing argument. We address
Cano’s first two arguments in turn. Because we conclude that the district court erred in denying Cano’s motion to suppress, we vacate Cano’s conviction and do not
reach his claim of prosecutorial misconduct.
9a
II.
THE WARRANTLESS SEARCH OF
CANO’S CELL PHONE
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. 3 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.” Id. Warrants are generally required “unless
‘the exigencies of the situation’ make the needs of law
enforcement so compelling that the warrantless search
is objectively reasonable under the Fourth Amendment.”
Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (citation
omitted). Consequently, “searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967) (footnote omitted).
Such “specifically established and well-delineated exceptions” include exigent circumstances, searches incident to arrest, vehicle searches, and border searches.
See Arizona v. Gant, 556 U.S. 332, 343 (2009) (vehicle
searches); Brigham City v. Stuart, 547 U.S. 398, 403
(2006) (exigent circumstances; listing other exceptions,
including warrantless entry to fight a fire, to prevent the
imminent destruction of evidence, or in “hot pursuit” of
We review de novo “the district court’s determination that [a]
warrantless search . . . was a valid border search.” United
States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985).
3
10a
a fleeing suspect); United States v. Ramsey, 431 U.S.
606, 616 (1977) (border searches); Weeks v. United
States, 232 U.S. 383, 392 (1914) (searches incident to arrest), overruled in part on other grounds by Mapp v.
Ohio, 367 U.S. 643 (1961).
Exceptions to the warrant requirement are subject
to two important constraints. First, any search conducted under an exception must be within the scope of
the exception. Second, some searches, even when conducted within the scope of the exception, are so intrusive that they require additional justification, up to and
including probable cause and a warrant.
The first constraint is illustrated by the Supreme
Court’s decision in Riley v. California, 573 U.S. 373
(2014), a case involving the search incident to arrest exception. In Riley, the Court addressed “whether the
police may, without a warrant, search digital information on a cell phone seized from an individual who has
been arrested”; in other words, whether cell phones fell
within the scope of the search incident to arrest exception. Id. at 378. The Court began by recognizing the
increasing role in our lives of “minicomputers that also
happen to have the capacity to be used as a telephone”;
“[m]odern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search of a
cigarette pack, a wallet, or a purse.” Id. at 393. Acknowledging that “it has been well accepted that [a
search incident to lawful arrest] constitutes an exception to the warrant requirement,” id. at 382, the Court
pointed out that such searches serve two purposes: (1)
to secure “the officer’s safety” and (2) to “prevent . . .
11a
concealment or destruction [of evidence],” id. at 383 (citation omitted). The Court then considered whether a
cell phone search qualified as a search incident to arrest
by considering “whether application of the search incident to arrest doctrine to [cell phones] would ‘untether
the rule from the justifications underlying the . . .
exception.’ ” Id. at 386 (quoting Gant, 556 U.S. at 343).
The Court concluded that neither purpose for the
search incident to arrest exception justified the search
of a cell phone. The Court rejected the government’s
argument that searching a cell phone incident to arrest
would “help ensure officer safety in . . . indirect
ways, for example by alerting officers that confederates
of the arrestee are headed to the scene.” Id. at 387.
The Court reasoned that the government’s position
“would . . . represent a broadening” of the exception’s foundational concern that “an arrestee himself
might grab a weapon and use it against an officer.” Id.
at 387-88. The Court observed that “once law enforcement officers have secured a cell phone, there is no
longer any risk that the arrestee himself will be able to
delete incriminating data from the phone,” id. at 388,
and police have means to ensure that data cannot be
wiped from the phone remotely, id. at 390. The Court
concluded “not that the information on a cell phone is
immune from search; [but rather] that a warrant is generally required before such a search, even when a cell
phone is seized incident to arrest.” Id. at 401.
The second constraint on warrantless searches is illustrated by the Court’s decision in United States v.
Montoya de Hernandez, 473 U.S. 531 (1985). Montoya
was stopped at Los Angeles International Airport and
12a
referred to secondary inspection. Id. at 533. She had
arrived from Bogota and was carrying $5,000 in cash.
Id. She had no credit cards and no hotel reservations.
Id. at 533-34. Because border officials suspected that
Montoya may have swallowed cocaine-filled balloons,
Montoya was held in the customs office and, after a magistrate judge issued an order, taken to a hospital for a
rectal examination. Id. at 534-35. Over the next four
days, she passed 88 balloons containing cocaine. Id. at
536. Montoya argued that the search she was subjected to, though a border search, was so intrusive that
it could not be conducted without a high level of particularized suspicion. Id. at 536-37, 540. The Court balanced her privacy interests against the interests of the
government at the border and concluded that, while routine searches may be conducted at the border without
any showing of suspicion, a more intrusive, nonroutine
search must be supported by “reasonable suspicion.”
Id. at 537-41; see also United States v. Flores-Montano,
541 U.S. 149, 152 (2004) (suggesting that nonroutine
searches are limited to “highly intrusive searches of the
person” involving “dignity and privacy interests”).
Cano recognizes that he was subject to search at the
border, but Cano and amicus Electronic Frontier Foundation (“EFF”) raise two categorical challenges and one
as-applied challenge to the searches conducted here.
First, EFF argues that any warrantless search of a cell
phone falls outside the scope of the border search exception. Second, EFF argues that even if the search is
within the scope of the border search exception, a warrantless cell phone search is so intrusive that it requires
probable cause. We address these categorical challenges in Part II.A. Third, Cano asserts that, even if
13a
cell phones are generally subject to search at the border,
the manual and forensic searches of his cell phone exceeded the “well delineated” scope of the border search.
We address this as-applied question in Part II.B. Finally, the government argues that even if the border
search exceeded the limits of the Fourth Amendment,
the search was conducted in good faith, and the evidence
is admissible. We consider the good faith exception in
Part II.C.
A. Border Searches and Cell Phones
“[B]order searches constitute a ‘historically recognized exception to the Fourth Amendment’s general
principle that a warrant be obtained.’ ” Cotterman, 709
F.3d at 957 (quoting Ramsey, 431 U.S. at 621). Indeed,
border searches typically do not require any particularized suspicion, so long as they are “routine inspections
and searches of individuals or conveyances seeking to
cross our borders.” Almeida-Sanchez v. United States,
413 U.S. 266, 272 (1973); see United States v. Seljan, 547
F.3d 993, 999 (9th Cir. 2008) (en banc). Such searches
are “reasonable simply by virtue of the fact they occur
at the border.” Ramsey, 431 U.S. at 616. The exception is “rooted in ‘the long-standing right of the sovereign to protect itself by stopping and examining persons
and property crossing into this country,’ ” Cotterman,
709 F.3d at 960 (quoting Ramsey, 431 U.S. at 616), to
“prevent[] the entry of unwanted persons and effects,”
id. (quoting Flores-Montano, 541 U.S. at 152).
The sovereign’s right to conduct suspicionless
searches at the border “does not mean, however, that at
the border ‘anything goes.’” Id. (quoting Seljan, 547
F.3d at 1000). Rather, the border search exception is
14a
a “narrow exception” that is limited in two important
ways. Id. (citation omitted). First, “[t]he authorizing
statute limits the persons who may legally conduct a
‘border search’ to ‘persons authorized to board or search
vessels.’ ” United States v. Soto-Soto, 598 F.2d 545, 549
(9th Cir. 1979) (citing 19 U.S.C. § 482).4 This includes
customs and immigration officials, but not general law
enforcement officers such as FBI agents. Id.; see
United States v. Diamond, 471 F.2d 771, 773 (9th Cir.
1973) (stating that “customs agents are not general
guardians of the public peace”). Second, a border search
4
Section 482 now reads in relevant part:
Any of the officers or persons authorized to board or search
vessels may stop, search, and examine . . . any vehicle,
beast, or person, on which or whom he or they shall suspect
there is merchandise which is subject to duty, or shall have
been introduced into the United States in any manner contrary
to law. . . . [and may] seize and secure the same for trial.
19 U.S.C. § 482(a); see id. § 1467 (“[T]he appropriate customs officer
for [a] port or place of arrival may . . . enforce, cause inspection, examination, and search to be made of the persons, baggage, and merchandise discharged or unladen from [an arriving] vessel. . . . ”);
id. § 1496 (“The appropriate customs officer may cause an examination to be made of the baggage of any persons arriving in the United
States in order to ascertain what articles are contained therein and
whether subject to duty, free of duty, or prohibited. . . . ”); id.
§ 1582 (“[A]ll persons coming into the United States from foreign
countries shall be liable to detention and search by authorized officers or agents. . . . ”).
The Court has described § 482 as granting the executive “plenary
authority to conduct routine searches and seizures at the border,
without probable cause or a warrant.” Montoya de Hernandez, 473
U.S. at 537. We have held that the “outer limits of authority delegated by [§ 482 are] available only in border searches.” Corngold
v. United States, 367 F.2d 1, 3 (9th Cir. 1966) (en banc).
15a
must be conducted “in enforcement of customs laws.”
Soto-Soto, 598 F.2d at 549. A border search must be
conducted to “enforce importation laws,” and not for
“general law enforcement purposes.” Id. A general
search cannot be “justif[ied] . . . on the mere basis
that it occurred at the border.” Id. (affirming the suppression of evidence where an FBI agent stopped and
searched the vehicle of an alien to determine whether
the car had been stolen).
1.
Cell Phone Data as Contraband
As we discussed briefly above, the Supreme Court
has identified two principal purposes behind warrantless border searches: First, to identify “[t]ravellers
. . . entitled to come in” and, second, to verify their
“belongings as effects which may be lawfully brought
in.” Carroll v. United States, 267 U.S. 132, 154 (1925);
see Ramsey, 431 U.S. at 620 (“The border-search exception is grounded in the recognized right of the sovereign
to control . . . who and what may enter the country.”).
EFF argues that applying the border search exception to a cell phone’s data would “untether” the exception from the purposes underlying it. EFF contends
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 effects.
Because digital data on a cell phone cannot conceal objects such as drugs, guns, or smuggled persons, EFF
asserts that digital cell phone searches are always beyond the scope of the border search exception.
We agree with EFF that the purpose of the border
search is to interdict contraband, but we disagree with
16a
its premise that cell phones cannot contain contraband.
Although cell phone data cannot hide physical objects, 5
the data can contain digital contraband. The best
example is child pornography. See United States v.
Molina-Isidoro, 884 F.3d 287, 295 n.3 (5th Cir. 2018)
(Costa, J., specially concurring) (“One type of contraband that can be stored within the data of a cell phone
. . .
is child pornography.”).
And because cell
phones may ultimately be released into the interior,
even if the owner has been detained, the United States
has a strong interest in preventing the entry of such material. See, e.g., United States v. Vergara, 884 F.3d
1309, 1311 (11th Cir.) (describing how agents returned
one of the defendant’s phones to a family member after
defendant had been arrested for possessing child pornography on his other two phones), cert. denied, 139
S. Ct. 70 (2018). We find no basis for the proposition
that the border search exception is limited to searching
for physical contraband. At the very least, a cell phone
that has photos stored on it is the equivalent of photographs, magazines, and books. 6 See Riley, 573 U.S. at
5
No one contests that a border official could, consistent with the
Fourth Amendment, examine the physical body of a cell phone to see
if the phone itself is contraband—because, for example, it is a pirated
copy of a patented U.S. phone—or if the phone itself presents a physical threat to officers. See Riley, 573 U.S. at 387 (“Law enforcement officers remain free to examine the physical aspects of a phone
to ensure that it will not be used as a weapon—say, to determine
whether there is a razor blade hidden between the phone and its
case.”). The dispute here concerns only whether border officials
may search the digital data contained within the phone.
6
We need not address here questions surrounding the use of
“cloud computing,” where the phone gives access to, but does not
17a
394; Cotterman, 709 F.3d at 964. The contents may be
digital when they are on the phone, but the physicality
of the phone itself and the possibility that the phone’s
contents can be printed or shared electronically gives
border officials sufficient reason to inspect it at the border.
We conclude that cell phones—including the
phones’ data—are subject to search at the border.
2.
Forensic Cell Phone Searches as an Intrusive
Search
The second question we must address in response to
amicus EFF is whether forensic searches of a cell phone
are so intrusive that they require reasonable suspicion
or even probable cause. We answered this question in
our en banc decision in Cotterman, but with respect to
laptop computers. 7 Cotterman, 709 F.3d at 962-68.
Cotterman was a United States citizen returning to the
United States from Mexico. Id. at 957. When he
reached the port of entry, border officials noted that
Cotterman had various convictions for sexual conduct
with children. Id. Concerned that Cotterman might
be involved in child sex tourism, officials conducted a
brief search of his laptop computers and digital cameras
and noted that the laptops had password-protected files.
Id. at 958. The officials detained the computers for
several days in order to run a comprehensive forensic
contain in its own memory, digital data stored in the cloud. See Riley, 573 U.S. at 397-98; Cotterman, 709 F.3d at 965 & n.12.
7
Although Cotterman referred to “electronic devices” generally,
see 709 F.3d at 962-68, our holding was limited to the “examination
of Cotterman’s computer,” id. at 968, and did not address cell
phones. We mentioned cell phones only once—in the first paragraph of the introduction describing the modern “digital world.”
Id. at 956.
18a
search of the hard drive, which revealed hundreds of images of child pornography. Id. at 958-59. For us, “the
legitimacy of the initial search of Cotterman’s electronic
devices at the border [was] not in doubt,” id. at 960,
“[t]he difficult question . . . [was] the reasonableness, without a warrant, of the forensic examination that
comprehensively analyzed the hard drive of the computer,” id. at 961.
We acknowledged the “substantial personal privacy
interests” in “[e]lectronic devices . . . capable of
storing warehouses full of information.” Id. at 964.
At the same time, we recognized “the important security
concerns that prevail at the border” and the legitimacy
of “[t]he effort to interdict child pornography.” Id. at
966. We held that a routine, manual search of files on
a laptop computer—“a quick look and unintrusive search”
—is reasonable “even without particularized suspicion,”
but that officials must “possess a particularized and objective basis for suspecting the person stopped of criminal activity” to engage in a forensic examination, which
is “essentially a computer strip search.” Id. at 960-61,
966, 967 (citation omitted). We concluded that reasonable suspicion was “a modest, workable standard that is
already applied in the extended border search, Terry
stop, and other contexts.” Id. at 966; see id. at 968 (defining reasonable suspicion as “a particularized and objective basis for suspecting the particular person stopped
of criminal activity” (quoting United States v. Cortez,
449 U.S. 411, 417-18 (1981))).
We think that Cotterman’s reasoning applies equally
to cell phones. In large measure, we anticipated the
Supreme Court’s reasoning in Riley, 573 U.S. at 393-97,
19a
when we recognized in Cotterman 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,” Cotterman, 709 F.3d at 965-66; see Riley, 573 U.S. at 385,
393 (describing cell phones 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”). The 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. 8
Nor do we believe that Riley renders the Cotterman
standard insufficiently protective. Riley, of course,
held that “a warrant is generally required” before searching a cell phone, “even when a cell phone is seized incident to arrest.” 573 U.S. at 401. But here we deal
with the border search exception—not the search incident to arrest exception—and the difference in context
is critical. In light of the government’s enhanced interest in protecting the “integrity of the border” and the
individual’s decreased expectation of privacy, the Court
has emphasized that “the Fourth Amendment’s balance
We note that the Eleventh Circuit disagreed with Cotterman in
United States v. Touset, 890 F.3d 1227, 1234 (11th Cir. 2018). The
court held that no level of suspicion was required to conduct a forensic search of a cell phone. Id. at 1234-35. Nevertheless, the Touset
court held, in the alternative, that the forensic search of various electronic devices seized at the border were supported by reasonable
suspicion. Id. at 1237. As with most cell phone search cases, in
Touset border agents were looking for child pornography.
8
20a
of reasonableness is qualitatively different at the international border than in the interior” and is “struck much
more favorably to the Government.” Montoya de Hernandez, 473 U.S. at 538-40. As a result, post-Riley, no
court has required more than reasonable suspicion to
justify even an intrusive border search. See United
States v. Wanjiku, 919 F.3d 472, 485 (7th Cir. 2019)
(“[N]o circuit court, before or after Riley, has required
more than reasonable suspicion for a border search
of cell phones or electronically-stored data.”); Touset,
890 F.3d at 1234 (“Riley, which involved the searchincident-to-arrest exception, does not apply to searches
at the border.”); Molina-Isidoro, 884 F.3d at 291 (“For
border searches both routine and not, no case has required a warrant.”); id. at 293 (“The bottom line is that
only two of the many federal cases addressing border
searches of electronic devices have ever required any
level of suspicion. They both required only reasonable
suspicion and that was for the more intrusive forensic
search.”); see also Kolsuz, 890 F.3d 133, 137 (4th Cir.
2018) (concluding that a “forensic examination of Kolsuz’s
phone must be considered a nonroutine border search,
requiring some measure of individualized suspicion” but
declining to decide whether the standard should be reasonable suspicion or probable cause).
Accordingly, we hold that manual searches of cell
phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell
phone requires a showing of reasonable suspicion. See
Cotterman, 709 F.3d at 968.
21a
B. The Searches of Cano’s Cell Phone and the Scope of
the Border Search Exception
Having concluded that border officials may conduct
suspicionless manual searches of cell phones, but must
have reasonable suspicion before they conduct a forensic search, we still must address the core of Cano’s argument: whether the manual and forensic searches of
his cell phone were not searches for digital contraband,
but searches for evidence of a crime, and thus exceeded
the proper scope of a border search.
1.
The Border Exception and the Search for Contraband
As a threshold matter, Cano argues that border
searches are limited in both purpose and scope to
searches for contraband. 9 In response, the government
9
Cano emphasizes that the officials who arrested him were looking for evidence of a crime, not contraband that could be seized at
the border, and this renders the search unconstitutional. He points
to Officers Petonak and Medrano, who searched Cano’s cell phone,
and who testified that their searches had a dual purpose: “to find
some brief investigative leads in the current case” and “to see if
there[] [was] evidence of other things coming across the border.”
Because the agents acknowledged that they sought evidence to use
against Cano in building a criminal case, Cano argues that the court
should treat the search as one conducted for “general law enforcement purposes” rather than a border search.
Cano’s focus on the officials’ subjective motivations is misplaced,
however. As the district court recognized, “courts have repeatedly
held that the Fourth Amendment’s reasonableness analysis is ‘predominantly an objective inquiry.’ ” See Whren v. United States, 517
U.S. 806, 813 (1996) (upholding a “pretextual” stop because “[s]ubjective intentions play no role in ordinary . . . Fourth Amendment analysis”). We have upheld border searches of persons seeking entry even when those searches were conducted “at the behest”
22a
argues that searches for evidence that would aid in prosecuting past and preventing future border-related
crimes are tethered to the purpose of the border search
exception—namely, interdicting foreign contraband—
and thus fall within its scope.
This is a close question, but we think Cano has the
better of the argument. There is a difference between
a search for contraband and a search for evidence of
border-related crimes, although the distinction may not
be apparent. Cotterman helps us focus on the difference. There, border officials had been alerted that
Cotterman had a criminal record of sex abuse of minors
and might be involved in “child sex tourism.” Cotterman, 709 F.3d at 957. The officials seized his laptop
and subjected it to searches for child pornography,
which they found. In Cotterman, the child pornography was contraband subject to seizure at the border.
As contraband, the child pornography is also evidence
of various crimes, including possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), and importation of
obscene material, 18 U.S.C. § 1462(a). But nothing in
Cotterman authorized border officials to conduct a search
for evidence that Cotterman was involved in sex-related
crimes generally.
of DEA agents seeking criminal evidence. See United States v.
Schoor, 597 F.2d 1303, 1305-06 (9th Cir. 1979) (holding a border
search reasonable where it was conducted “at the behest” of DEA
agents and included a search for certain items of evidence in addition
to a search for contraband). Thus, the mere fact that Officers Petonak and Medrano subjectively hoped to find “investigative leads”
pertaining to the seized shipment of cocaine does not render their
searches of Cano’s phone beyond the border search exception.
23a
Border officials are authorized to seize “merchandise
which . . . shall have been introduced into the United
States in any manner contrary to law.” 19 U.S.C. § 482(a)
(emphasis added). The photos on Cotterman’s laptop
computer were such merchandise. 18 U.S.C. § 2252(a).
But border officials have no general authority to search
for crime. This is true even if there is a possibility that
such crimes may be perpetrated at the border in the future. So, for example, if U.S. officials reasonably suspect that a person who has presented himself at the border may be engaged in price fixing, see 15 U.S.C. § 1,
they may not conduct a forensic search of his phone or
laptop. Evidence of price fixing—texts or emails, for
example—is not itself contraband whose importation is
prohibited by law. Such emails may be evidence of a
crime, but they are not contraband, and there is no law
prohibiting the importation of mere evidence of crime.
We recognize that our analysis is in tension with the
Fourth Circuit’s decision in Kolsuz. Kolsuz was detained at Washington Dulles International Airport when
customs agents discovered firearm parts in his luggage.
Kolsuz, 890 F.3d at 138-39. Kolsuz was arrested and
his cell phone seized. Id. at 139. The agents subjected the phone to a month-long forensic search, producing a 896-page report. Id. Kolsuz challenged the
search, which the district court upheld and the Fourth
Circuit affirmed. Id. at 139-42. The court approved
the forensic search because the agents had “reason to
believe . . . that Kolsuz was attempting to export
firearms illegally” and that “their search would reveal
not only evidence of the export violation they already
had detected, but also ‘information related to other ongoing attempts to export illegally various firearm
24a
parts.’ ” Id. at 143 (quoting the district court; citation
omitted). According to the Fourth Circuit, “[t]he justification behind the border search exception is broad
enough to accommodate not only the direct interception
of contraband as it crosses the border, but also the prevention and disruption of ongoing efforts to export contraband illegally.” Id. (emphasis added). 10
We agree with much of the Fourth Circuit’s discussion of foundational principles, but we respectfully disagree with the final step approving the search for further
evidence that Kolsuz was smuggling weapons. Our disagreement focuses precisely on the critical question that
we previously identified: 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.” The
“[d]etection of
. . .
contraband is the strongest
historic rationale for the border-search exception.”
Molina-Isidoro, 884 F.3d at 295 (Costa, J., specially
concurring). Indeed, “every border-search case the
Supreme Court has decided involved searches to locate
As support for this proposition, the Fourth Circuit cited two district court cases originating within our circuit. Both of those cases
addressed fact-patterns almost identical to Cano’s, and in each case
the district court held that the border-search exception was not limited to searching for contraband directly. See United States v.
Mendez, 240 F. Supp. 3d 1005, 1007-08 (D. Ariz. 2017); United States
v. Ramos, 190 F. Supp. 3d 992, 999 (S.D. Cal. 2016). In neither case
was the issue appealed to our circuit. Thus, Cano’s case presents the
first opportunity for us to consider the matter.
10
25a
items being smuggled” rather than evidence. Id. (emphasis added); see Montoya de Hernandez, 473 U.S. at
537 (the border search is “to prevent the introduction of
contraband into this country”); United States v. 12 200Foot Reels of Super 8mm. Film, 413 U.S. 123, 125 (1973)
(border searches are “necessary to prevent smuggling
and to prevent prohibited articles from entry”); United
States v. Thirty-Seven Photographs, 402 U.S. 363, 376
(1971) (“Customs officers characteristically inspect luggage and their power to do so is not questioned in this
case; it is an old practice and is intimately associated
with excluding illegal articles from the country”). In
fact, the Court has long “draw[n] a sharp distinction between searches for contraband and those for evidence
that may reveal the importation of contraband.”
Molina-Isidoro, 884 F.3d at 296 (Costa, J., specially
concurring). The classic statement on the distinction
between seizing goods at the border because their importation is prohibited and seizing goods at the border
because they may be useful in prosecuting crimes is
found in Boyd v. United States:
Is a search and seizure, or, what is equivalent thereto, a compulsory production of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against
the revenue laws—is such a proceeding for such a
purpose an “unreasonable search and seizure” within
the meaning of the fourth amendment of the constitution?. . . . The search for and seizure of stolen
or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s
private books and papers for the purpose of obtaining
26a
information therein contained, or of using them as evidence against him. The two things differ toto coelo.
116 U.S. 616, 622-23 (1886), overruled in part on other
grounds by Warden, Md. Penitentiary v. Hayden, 387
U.S. 294 (1967); see also id. at 633 (stating that compelling a man to produce the evidence against himself not
only violates the Fifth Amendment, but makes the seizure of his “books and papers” unreasonable under the
Fourth Amendment).
Although we continue to acknowledge that “[t]he
Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border” and that “the expectation of privacy is
less at the border than it is in the interior,” FloresMontano, 541 U.S. at 152, 154, we hold that the border
search exception authorizes warrantless searches of a
cell phone only to determine whether the phone contains
contraband. A broader search cannot be “justified by
the particular purposes served by the exception.” Florida v. Royer, 460 U.S. 491, 500 (1983).
2.
The Impact of a Limited Scope for Border
Searches
Our conclusion that the border search exception is restricted in scope to searches for contraband implicates
two practical limitations on warrantless border searches.
First, border officials are limited to searching for contraband only; they may not search in a manner untethered to the search for contraband. The Supreme Court
has repeatedly emphasized that “[t]he scope of the search
must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”
Terry v. Ohio, 392 U.S. 1, 19 (1968).
27a
The validity of the manual searches conducted by
Agents Petonak and Medrano at their inception is beyond dispute. Manual searches of a cell phone at the
border can be conducted without any suspicion whatsoever, see Cotterman, 709 F.3d at 960, and both agents
were officers of HSI and thus had authority to conduct
border searches, Soto-Soto, 598 F.2d at 548-49. As the
Supreme Court explained in Terry, however, “a search
which is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable intensity
and scope.” 392 U.S. at 18.
Once Cano was arrested, Agent Petonak briefly
searched Cano’s phone and observed that there were no
text messages. The observation that the phone contained no text messages falls comfortably within the
scope of a search for digital contraband. Child pornography may be sent via text message, so the officers acted
within the scope of a permissible border search in accessing the phone’s text messages.
Agent Medrano conducted a second manual search of
the phone log and text messages on Cano’s phone.
Medrano, however, did more than thumb through the
phone consistent with a search for contraband. He also
recorded phone numbers found in the call log, and he
photographed two messages received after Cano had
reached the border. Those actions have no connection
whatsoever to digital contraband. Criminals may hide
contraband in unexpected places, so it was reasonable
for the two HSI officers to open the phone’s call log to
verify that the log contained a list of phone numbers and
not surreptitious images or videos. But the border
28a
search exception does not justify Agent Medrano’s recording of the phone numbers and text messages for further processing, because that action has no connection
to ensuring that the phone lacks digital contraband.
Accordingly, to the extent that Agent Medrano’s search
of Cano’s phone went beyond a verification that the
phone lacked digital contraband, the search exceeded
the proper scope of a border search and was unreasonable as a border search under the Fourth Amendment. 11
Second, because the border search exception is limited in scope to searches for contraband, border officials
The fact of Cano’s arrest does not affect our analysis. The border search does not lose its identity as such once Cano was arrested.
The United States retains a strong interest in preventing contraband from entering the United States, whether it is brought in inadvertently, smuggled, or admitted into the United States once its
owner is arrested. See United States v. Ickes, 393 F.3d 501, 503-05
(4th Cir. 2005) (upholding the post-arrest search of a laptop computer at the border where the officials had reason to suspect the
computer carried child pornography); see also United States v.
Bates, 526 F.2d 966, 967-68 (5th Cir. 1976) (per curiam) (upholding a
search of the defendant’s vehicle after he had been arrested at the
border for violating his bond in connection with a previous drug
crime under both the search incident to arrest and the border search
exception).
The government has not argued that the forensic search of
Cano’s phone can be justified as a search incident to lawful arrest.
Such an argument is foreclosed by Riley. See Riley, 573 U.S. at
388-91. Nor has the government argued that once Medrano saw
the phone numbers in the call log and the text messages that he could
record them consistent with the plain view exception. See United
States v. Comprehensive Drug Testing, 621 F.3d 1162, 1175-77 (9th
Cir. 2010) (en banc) (per curiam), overruled in part on other grounds
as recognized by Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir.
2018) (per curiam).
11
29a
may conduct a forensic cell phone search only when they
reasonably suspect that the cell phone contains contraband. We have held that a “highly intrusive” search—
such as a forensic cell phone search—requires some
level of particularized suspicion. Cotterman, 709 F.3d
at 963, 968; see Flores-Montano, 541 U.S. at 152. But
that just begs the question: Particularized suspicion
of what? Contraband? Or evidence of future borderrelated crimes? Having concluded above that border
searches are limited in scope to searches for contraband
and do not encompass searches for evidence of past or
future border-related crimes, we think the answer here
is clear: to conduct a more intrusive, forensic cell phone
search border officials must reasonably suspect that the
cell phone to be searched itself contains contraband.
Were we to rule otherwise, the government could
conduct a full forensic search of every electronic device
of anyone arrested at the border, for the probable cause
required to justify an arrest at the border will always
satisfy the lesser reasonable suspicion standard needed
to justify a forensic search. As the Court pointed out
in Riley, modern cell phones are “minicomputers” with
“immense storage capacity.” 573 U.S. at 393. Such
phones “carry a cache of sensitive personal information”
—“[t]he sum of an individual’s private life”— such that
a search of a cell phone may give the government not
only “sensitive records previously found in the home,”
but a “broad array of private information never found in
a home in any form—unless the phone is.” Id. at 39397. Were we to give the government unfettered access
to cell phones, we would enable the government to evade
the protections laid out in Riley “on the mere basis that
30a
[the searches] occurred at the border.”
F.2d at 549.
Soto-Soto, 598
Moreover, in cases such as this, where the individual
suspected of committing the border-related crime has
already been arrested, there is no reason why border officials cannot obtain a warrant before conducting their
forensic search. This “is particularly true in light of
‘advances’ in technology that now permit ‘the more expeditious processing of warrant applications.’ ” Birchfield v. North Dakota, 136 S. Ct. 2160, 2192 (2016) (quoting Missouri v. McNeely, 569 U.S. 141, 154 (2013)); see
Riley, 573 U.S. at 401. Indeed, in most cases the time
required to obtain a warrant would seem trivial compared to the hours, days, and weeks needed to complete
a forensic electronic search. See, e.g., Wanjiku, 919
F.3d at 477 (noting that a forensic “preview” takes one
to three hours; the full examination “could take months”);
Kolsuz, 890 F.3d at 139 (describing how the forensic
search “lasted for a full month, and yielded an 896-page
report”); Cotterman, 709 F.3d at 959 (describing how
the first forensic search was conducted over five days;
additional evidence was found “[o]ver the next few
months”). We therefore conclude that border officials
may conduct a forensic cell phone search only when they
reasonably suspect that the cell phone to be searched itself contains contraband.
Applied here, if the Cellebrite search of Cano’s cell
phone qualifies as a forensic search, the entire search
was unreasonable under the Fourth Amendment.12 AlWhether the Cellebrite search constitutes a forensic search is
disputed. Because the district court passed on the issue without
deciding it, because neither party has briefed the question to us, and
12
31a
though Agents Petonak and Medrano had reason to suspect that Cano’s phone would contain evidence leading
to additional drugs, the record does not give rise to any
objectively reasonable suspicion that the digital data in
the phone contained contraband. 13 Absent reasonable
suspicion, the border search exception did not authorize
the agents to conduct a warrantless forensic search of
Cano’s phone, and evidence obtained through a forensic
search should be suppressed.
C.
Good Faith Exception
We next consider whether the evidence uncovered by
the searches is nevertheless allowed by the good faith
exception. Having held that the manual searches partially violated the Fourth Amendment and having held
that, if the Cellebrite search of Cano’s phone was a forensic search, it violated the Fourth Amendment, we
must determine whether the appropriate remedy is suppression of the evidence. The exclusionary rule is “a
because we are vacating Defendant’s conviction, we decline to reach
the merits of the parties’ dispute. See ASSE Int’l, Inc. v. Kerry,
803 F.3d 1059, 1079 (9th Cir. 2015).
13
Indeed, the detection-of-contraband justification would rarely
seem to apply to an electronic search of a cell phone outside the context of child pornography. The courts of appeals have just begun
to confront the difficult questions attending cell phone searches at
the border. Most of the cases have involved child pornography.
See, e.g., Wanjiku, 919 F.3d 472; Touset, 890 F.3d 1227; MolinaIsidoro, 884 F.3d 287; Vergara, 884 F.3d 1309; Cotterman, 709 F.3d
952. Among the courts of appeals, only the Fourth Circuit has addressed the question outside the context of pornography. Kolsuz,
890 F.3d 133 (exportation of firearms parts); see also United States
v. Kim, 103 F. Supp. 3d 32 (D.D.C. 2015) (exports in violation of Iranian trade embargo); United States v. Saboonchi, 990 F. Supp. 2d
536 (D. Md. 2014) (same).
32a
‘prudential’ doctrine”; it is “ ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.”
Davis v.
United States, 564 U.S. 229, 236 (2011) (quoting Stone v.
Powell, 428 U.S. 465, 486 (1976)). Because “[e]xclusion
exacts a heavy toll on both the judicial system and society at large,” we invoke the rule when we are confident
that it will “deter future Fourth Amendment violations.”
Id. at 236-37. The exclusionary rule does not deter
such violations “when the police conduct a search in objectively reasonable reliance on binding judicial precedent.” Id. at 239. We have said that the good faith
exception applies only to searches where “binding appellate precedent . . . ‘specifically authorizes’ the
police’s search.” United States v. Lara, 815 F.3d 605,
613 (9th Cir. 2016) (quoting Davis, 564 U.S. at 232). It
is not sufficient for the question to be “unclear” or for
the government’s position to be “plausibly . . . permissible.” Id. at 613-14. At the same time, the “precedent [does not have] to constitute a factual match with
the circumstances of the search in question for the goodfaith exception to apply” so as not to “make the goodfaith exception a nullity.” United States v. Lustig, 830
F.3d 1075, 1082 (9th Cir. 2016).
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
33a
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.
We understand that border officials might have
thought that their actions were reasonable, and we recognize that border officials have to make in-the-moment
decisions about how to conduct their business—whether
or not they have written guidance from the courts. But
as we understand the Davis rule, the good faith exception to the exclusionary rule applies only when the officials have relied on “binding appellate precedent.” See
Lara, 815 F.3d at 613; see also Wanjiku, 919 F.3d at 48586 (finding that agents had reasonable suspicion to
search the defendant’s cell phone, laptop, and portable
hard drive for child pornography; holding that, if probable cause was required, the officials acted in good
faith). This is a rapidly developing area, not an area of
settled law. Even if our decision in Cotterman rendered the searches “plausibly . . . permissible,” it
did not “specifically authorize” the cell phone searches
at issue here. Lara, 815 F.3d at 613-14.
* * *
In sum, the manual searches and the Cellebrite
search of Cano’s cell phone exceeded the scope of a valid
border search. Because the good faith exception does
not apply, most of the evidence obtained from the
searches of Cano’s cell phone should have been suppressed. We thus reverse the district court’s order
denying Cano’s motion to suppress, and we vacate
Cano’s conviction. On any retrial, the district court
should determine whether any additional evidence from
the warrantless searches of Cano’s cell phone should be
34a
suppressed, either because the Cellebrite search qualifies as a forensic search, which the government lacked
reasonable suspicion to conduct, or because the evidence
exceeds the proper scope of a border search.
III.
DISCOVERY ISSUES
Cano has also alleged that the government violated
his rights under both Brady and Federal Rule of Criminal Procedure 16 when it failed to turn over certain information that Cano requested from the FBI and DEA.
We address Cano’s discovery claims, as the issues may
be relevant on any retrial.
Under Brady, the prosecution has an obligation, imposed by the Due Process Clause, to produce “evidence
favorable to an accused upon request . . . where the
evidence is material either to guilt or to punishment.”
373 U.S. at 87. “[E]vidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985).14
Under Rule 16, the government must, upon request,
turn over any documents “within the government’s possession, custody, or control” that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i).
The defendant “must make a threshold showing of materiality, which requires a presentation of facts which
would tend to show that the Government is in possession
of information helpful to the defense.” United States
v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)
We review de novo whether a Brady violation has occurred.
United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010).
14
35a
(quoting United States v. Stever, 603 F.3d 747, 752 (9th
Cir. 2010)). Because “[i]nformation that is not exculpatory or impeaching may still be relevant to developing a
possible defense,” Rule 16 is “broader than Brady.”
Id. at 1183.15
Under both Brady and Rule 16, the government “has
no obligation to produce information which it does not
possess or of which it is unaware.” Sanchez v. United
States, 50 F.3d 1448, 1453 (9th Cir. 1995). It has an obligation to turn over only material, exculpatory or otherwise helpful to the defense, that it has in its possession.16 “Possession” is not limited to what the prosecutor personally knows. Browning v. Baker, 875 F.3d 444,
460 (9th Cir. 2017), cert. denied, 138 S. Ct. 2608 (2018);
United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.
1989). Because prosecutors are in a “unique position to
obtain information known to other agents of the government,” they have an obligation to “disclos[e] what [they]
do[] not know but could have learned.” Carriger v.
Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc); see
Although discovery rulings are generally reviewed for abuse of
discretion, Stever, 603 F.3d at 752, we review a district court’s interpretation of the discovery rules de novo, United States v. CedanoArellano, 332 F.3d 568, 570-71 (9th Cir. 2003).
16
The “possession” element of Brady is treated as coextensive
with that of Rule 16. See, e.g., United States v. Bryan, 868 F.2d 1032,
1037 (9th Cir. 1989) (using the same “knowledge and access” test to
determine “possession” for both Rule 16 and Brady); United States
v. Grace, 401 F. Supp. 2d 1069, 1076 (D. Mont. 2005) (“Whether exculpatory information is in the government’s possession for Brady
purposes is measured by the same . . . test used under Rule
16(a)(1)(E) for discovery.”).
15
36a
also Kyles v. Whitley, 514 U.S. 419, 437 (1995) (describing how the “individual prosecutor has a duty to learn of
any favorable evidence known to [those] acting on the
government’s behalf ”); Youngblood v. West Virginia,
547 U.S. 867, 869-70 (2006) (per curiam). This includes
information held by subordinates such as investigating
police officers, see Kyles, 514 U.S. at 438; United States
v. Price, 566 F.3d 900, 908-09 (9th Cir. 2009), and sometimes extends to information held by other executive
branch agencies, see United States v. Santiago, 46 F.3d
885, 893 (9th Cir. 1995); United States v. Jennings, 960
F.2d 1488, 1490-91 (9th Cir. 1992).
Documents held by another executive branch agency
are deemed to be “in the possession of the government”
if the prosecutor has “knowledge of and access to” the
documents. Bryan, 868 F.2d at 1036. Knowledge and
access are presumed if the agency participates in the investigation of the defendant. Id. (“The prosecutor will
be deemed to have knowledge of and access to anything
in the possession, custody or control of any federal
agency participating in the same investigation of the defendant.”). However, “a federal prosecutor need not
comb the files of every federal agency which might have
documents regarding the defendant in order to fulfill his
or her obligations under [Rule 16].” Id.; see also Kyles,
514 U.S. at 437 (“We have never held that the Constitution demands an open file policy. . . . ”).
Here, Cano asserted a third-party defense theory:
he was staying in Tijuana with his cousin, Jose Medina;
Medina was a member of the Latin Kings gang which
was involved in the drug trade; and Medina had access
to Cano’s car before Cano was stopped at the border.
37a
Cano requested that the U.S. Attorney’s Office turn
over any material held by HSI, the FBI, and the DEA
relating to: (1) records linking his cousin Jose Medina
to drug sales, distribution, and trafficking; and (2) documentation showing a link between the Latin Kings and
drug trafficking through the United States-Mexico border. The district court found that both requests might
produce evidence that was exculpatory under Brady and
material under Rule 16, but limited Cano’s discovery to
only material held by HSI. The court concluded that
the prosecutor did not have access to evidence held by
the FBI and DEA, and thus had no obligation to provide
such evidence, because both agencies had “rebuffed” the
prosecutor’s attempts to obtain information. Thus, the
only issue raised on appeal is whether any material held
by the DEA and FBI should be deemed “within the government’s possession.”
We find no evidence that the prosecution had knowledge or possession of evidence showing that Medina
or the Latin Kings were involved in drug trafficking at
the Mexico-California border. Medina had one drugrelated conviction, and it was for simple possession of
cocaine, not trafficking. Before trial, however, the
prosecution team reached out to Medina and promised
him immunity and immigration documents in exchange
for cooperation and information concerning drug importation. Although Medina originally rebuffed the government, he eventually offered to work with the government and “stated that he would be able to assist the Government with the . . . biggest RICO . . . case and
drug seizures of 20 to 25 kilograms at a time.” The district court found that Medina’s statements “spawn[ed]
an inference that [he] is closely connected to the drug-
38a
traffickers in Tijuana.” Based on this inference, Cano
argues that the government had sufficient knowledge of
a possible connection between Medina and drug trafficking to trigger the government’s discovery obligations.
Cano’s argument, however, misstates the test we
first set out in Bryan. Cano has argued only that the
prosecutor had knowledge that certain facts might exist.
However, we have said that the prosecutor’s disclosure
obligations turn on “the extent to which the prosecutor
has knowledge of and access to the documents sought by
the defendant.” Bryan, 868 F.2d at 1036 (emphasis
added); see also Santiago, 46 F.3d at 894 (analyzing
whether the prosecutor had knowledge of and access to
certain inmate files). We have required disclosure only
of documents that the prosecutor knew existed. Bryan,
868 F.2d at 1034-37.
Here, although Cano has presented evidence alleging
a plausible connection between Medina and drug trafficking, Cano has failed to adduce any evidence showing
that prosecutors or investigators knew that the FBI or
the DEA possessed documents showing that connection.
In fact, the record established the opposite. One of the
HSI agents ran Medina’s name through two different
law enforcement clearinghouses—in which the FBI and
DEA both participate—and neither search returned any
hits.
Moreover, the prosecutor did not have access to FBI
or DEA files and thus was under no obligation to “comb
the files” of the FBI and DEA for documents relating to
39a
Medina. 17 We have occasionally presumed that a prosecutor has access to an agency’s files where the prosecutor actually obtained inculpatory information from
the agency, even if the agency was not involved in the
investigation or prosecution. See Santiago, 46 F.3d at
894 (concluding that the prosecutor had access to other
inmates’ prison files where the prosecutor was able to
obtain the defendant’s prison file from the Bureau of
Prisons). Here, however, the U.S. Attorney’s Office
advised the district court that it did not obtain any
evidence—inculpatory or exculpatory—from the FBI or
the DEA. Following the district court’s initial discovery order, HSI’s agent—Agent Petonak—made a formal request to the legal counsel for the FBI and the
DEA for any “materials related to the Latin Kings importing cocaine from Mexico to the United States,” but
both agencies “declined to provide [him] with any such
information.” Neither agency revealed whether any
such information existed or provided a reason for its refusal. The U.S. Attorney’s Office also reached out to
the FBI and the DEA for Latin Kings-related discovery.
That request was also denied.
Cano sought to introduce a 2015 report from the FBI’s National
Gang Intelligence Center listing the Latin Kings as one of the top
gangs involved in cross border crime, and including drug importation in its list of cross-border crimes. (The evidence was not ultimately presented at trial.) Cano also proffered information concerning two government informants working within the Latin Kings.
Although these reports may suggest that the FBI may have had further information regarding a connection between the Latin Kings
and drug importation, Cano has not established that the prosecutor
had access to the FBI’s or the DEA’s files.
17
40a
Cano argues that the FBI and DEA’s refusal to turn
over information in this particular case should not be determinative and that the test for access under Bryan
and Santiago requires only that the U.S. Attorney’s Office or investigating agency generally have access to this
type of information. Cano points to evidence from both
prosecution and defense witnesses that HSI regularly
works with the FBI and the DEA; that “interagency cooperation has been emphasized” after September 11,
2001; that agents from the different agencies regularly
access information for one another; that a DEA representative worked in Agent Petonak’s office; and that
agents are often cross-listed between agencies. From
this, Cano argues that HSI generally has access to FBI
and DEA files for inculpatory purposes, and thus asserts that the refusal of the FBI and DEA to provide
information in this particular case should not relieve
HSI of its discovery obligations. To rule otherwise,
Cano contends, would allow these withholding agencies
“to effectively wall off exculpatory information from the
government in a particular defendant’s case, all the
while providing the government free-flowing access to
information in its overall investigations.”
Although we are sympathetic to Cano’s concerns regarding strategic withholding, the rule Cano urges us to
adopt is much too broad. Brady and Rule 16 obligations are case specific. In Bryan we stated that the
test for “possession” turns on the prosecutor’s “knowledge of and access to the documents sought by the defendant in each case” and that “[t]he prosecutor will be
deemed to have knowledge of and access to anything in
the possession, custody or control of any federal agency
41a
participating in the same investigation of the defendant.” 868 F.2d at 1036 (emphases added). Such a caseby-case approach makes sense, as the FBI and DEA may
have valid concerns over revealing sensitive information
in cases wholly unrelated to the agencies’ own workload;
the agencies may be reluctant to cooperate in a particular investigation if it means opening their files in other
investigations. If Cano thinks that the FBI or the DEA
have other information, not known to the U.S. Attorney’s Office or the investigating officers, he may file a
request under the Freedom of Information Act, subject
to that Act’s own restrictions on releasing “records or
information compiled for law enforcement purposes.”
5 U.S.C. § 552(b)(7). Brady and Rule 16 are not a
means for a defendant to require the prosecutor to do
this work for him. See generally Roth v. U.S. Dep’t of
Justice, 642 F.3d 1161, 1175-76 (D.C. Cir. 2011); Boyd v.
Crim. Div. of U.S. Dep’t of Justice, 475 F.3d 381, 386-89
(D.C. Cir. 2007).
Cano is unable to identify any case in which the prosecutor was required to obtain discovery from an agency
wholly unrelated to the investigation of the defendant in
spite of that agency’s refusal to comply; all of the cases
cited by Cano imposing a “duty to learn” on the prosecutor involve independent federal agencies that had participated in the investigation of the defendant. See
Price, 566 F.3d at 908-09; Carriger, 132 F.3d at 479-80;
United States v. Perdomo, 929 F.2d 967, 971 (3d Cir.
1991); United States v. Osorio, 929 F.2d 753, 762 (1st
Cir. 1991). Indeed, the Third Circuit has held that a
Brady obligation is not triggered where the agency did
not participate in the investigation in any way, did not
share any information with the prosecuting team, and
42a
where the prosecutor had no authority or control over
the agency’s members. United States v. Pelullo, 399
F.3d 197, 218 (3d Cir. 2005); see also United States v.
Salyer, 271 F.R.D. 148, 156 (E.D. Cal. 2010) (concluding
that “[t]he need for formal process in the acquisition of
documents [from another agency] is the antithesis of ‘access’ ”). We similarly now hold that the prosecutor
should not be held to have “access” to any information
that an agency not involved in the investigation or prosecution of the case refuses to turn over.
Because the HSI agents and prosecutors in Cano’s
case neither knew of nor had access to any additional
files relating to Medina and the Latin Kings, we conclude that the government has satisfied its discovery obligations under Brady and Rule 16.
IV.
CONCLUSION
We REVERSE the district court’s order denying
Cano’s motion to suppress and VACATE Cano’s conviction.
43a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Case No.:
16-cr-01770-BTM
UNITED STATES OF AMERICA, PLAINTIFF
v.
MIGUEL ANGEL CANO, DEFENDANT
Filed: Nov. 23, 2016
ORDER DENYING MOTION TO SUPPRESS AND
MOTION FOR RETURN OF PROPERTY
Presently before the Court are Defendant’s motion
to suppress and motion for return of property. The
Court held an evidentiary hearing on these matters on
October 25, 26 and 31, 2016. For the reasons discussed
below, Defendant’s motions are DENIED.
I.
FACTUAL BACKGROUND
On July 25, 2016 at approximately 6:30 a.m., Defendant, Miguel Angel Cano, applied for entry to the United
States at the San Ysidro Port of Entry (“POE”). A
Customs and Border Protection (“CBP”) officer conducted a primary inspection of Defendant and his pickup truck. The CBP officer subsequently referred Defendant to secondary inspection.
44a
During secondary inspection, a dog alerted to the
spare tire located underneath the bed of the truck.
Secondary officers handcuffed Defendant shortly thereafter. Defendant was taken to the security office
where he was handcuffed to a bench. CBP officers cut
the spare tire open and found approximately 16.52 kilograms of cocaine. Defendant was subsequently placed
under arrest.
After the cocaine was found, CBP officers called the
Homeland Security Investigations (“HSI”) office, which
dispatched Special Agents (“SA”) Petonak and Medrano
to investigate. Upon arriving at the POE, SA Petonak
spoke to the seizing CBP officers, inspected Defendant’s
vehicle and property, and reviewed Defendant’s crossing records. SA Petonak also did a cursory inspection
of Defendant’s cell phone to look for relevant text messages and recent calls. SA Medrano conducted a “logical download” of Defendant’s cell phone using Cellebrite technology . A “logical download” has the capability of downloading text messages, contacts, call logs,
media, and application data, though not messages contained within the applications themselves. He also
took notes of incoming and outgoing calls. He related
his findings to SA Petonak after his interview of Defendant.
At around 9:50 a.m., SA Petonak began his interview
of Defendant. SA Petonak advised Defendant of his
Miranda rights and obtained a written waiver of them.
Defendant agreed to speak to SA Petonak without an attorney present. During the interview SA Petonak
asked Defendant about his recent crossing history and
the reason for his recent move to Mexico. Defendant’s
45a
post-Miranda interview ended at about 10:20 a.m. Defendant was transported to the Metropolitan Correctional Center (“MCC”) in San Diego and booked during
the 5:30 p.m. booking window. The following day, on
July 26, 2016, Defendant made his initial appearance before Judge Stormes.
On August 5, 2016, Judge Adler granted the government a search warrant for Defendant’s cell phone and
ordered that it be executed by August 19, 2016.
II.
DISCUSSION
Defendant moves to suppress all evidence derived
from the search of his cell phone at the POE, contending
that his Fourth Amendment rights were violated because the agents searched his cell phone without a warrant. He also petitions the Court for the return of his
cell phone under Federal Rule of Criminal Procedure
41(g). Lastly, Defendant argues that his statements
should be suppressed as an appropriate remedy for a
Federal Rule of Criminal Procedure Rule 5(a) violation.
The Court addresses each argument below.
A.
Search of Defendant’s Cell Phone at the POE
Defendant argues that the agents’ search of his cell
phone on July 25, 2016 does not fall into any recognized
exceptions to the Fourth Amendment’s warrant requirement. Defendant relies on Riley v. California, __U.S.__,
134 S. Ct. 2473 (2014), to argue that the search incident
to arrest doctrine does not apply. He further argues
that the search does not fall within the border search
exception to the Fourth Amendment because its purpose was to further the agents’ investigation, rather
46a
than to prevent the entry of unwanted persons or contraband. The Government submits that United States
v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc),
supports the “logical search” of Defendant’s cell phone
—regardless of whether it is deemed a cursory or forensic search.
1.
Search Incident to Arrest Exception
In Riley, the Supreme Court held that police officers
must get a warrant before searching a cell phone seized
incident to arrest. 134 S. Ct. at 2495. Defendant argues that because he was already arrested when the
agents arrived at the POE, the warrantless search of his
phone was performed as a search incident to arrest and
was impermissible under Riley.
However, the search incident to arrest doctrine is one
of numerous exceptions to the Fourth Amendment’s
warrant requirement. In fact, even the Supreme Court
in Riley recognized that although “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.” Riley, 134 S. Ct. at 2494.
Though the Supreme Court did not specifically address
the border search exception, Riley does not preclude the
application of such doctrine.
2.
Border Search Exception
Border searches have long been recognized as a narrow exception to the Fourth Amendment’s warrant requirement. See Cotterman, 709 F.3d at 956. Courts
have repeatedly held that searches performed at the
border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons
47a
and property crossing into the United States, are “reasonable simply by virtue of the fact that they occur at
the border.” Cotterman, 709 F.3d at 960. However,
border searches are not without limits. Id. “Even at
the border, individual privacy rights are not abandoned
but balanced against the sovereign’s interests.” Id.
i.
Purpose of the Search
Defendant submits that the justification for a border
search exception, preventing the entry of unwanted persons or contraband, is inapplicable here. Defendant
argues that because he was already in custody, and the
drugs and his phone were seized before the agents arrived at the POE, the agents’ search of his phone was
“investigatory” in nature. That is, they performed the
search to gather evidence in an ongoing criminal investigation. Defendant thus attempts to draw a line between searches that are performed for the purpose of
preventing the entry of unwanted persons or things, like
those at issue in United States v. Arnold, 533 F.3d 1003,
1009 (9th Cir. 2008) and Cotterman, and “investigatory”
searches.
Though not framed as an inquiry into the actual motivations of the agents, Defendant’s argument is effectively seeking that the Court give weight to the agents’
subjective intent and motivations behind their search.
However, courts have repeatedly held that the Fourth
Amendment’s reasonableness analysis is “predominately an objective inquiry.” Ashcroft v. Al-Kidd, 563
U.S. 731, 736 (2011). In upholding a “pre-text stop,”
the Supreme Court in Whren v. United States, 517 U.S.
806, 813 (1996), reaffirmed the principle that “[s]ubjective intentions play no role in ordinary, probable-cause
48a
Fourth Amendment analysis.” There, police officers
discovered drugs after allegedly conducting a pretextual
traffic stop. Id. at 808-809. The Supreme Court rejected the argument that “ulterior motives can invalidate police conduct justified on the basis of probable
cause” and ultimately upheld the temporary detention
of the defendant upon probable cause that he had violated a traffic law. Id. at 812. It stated: “[n]ot only
have we never held, outside the context of inventory
search or administrative inspection . . . , that an officer’s motive invalidates objectively justifiable behavior
under the Fourth Amendment; but we have repeatedly
held and asserted the contrary.” Id.
The Supreme Court has only recognized two limited
exceptions to this general rule: 1) special-needs search
cases 1 ; and 2) administrative-search cases 2 . See Al1
The Supreme Court has upheld “suspicionless searches where
the program was designed to serve ‘special needs,’ beyond the normal need for law enforcement.” City of Indianapolis v. Edmond,
531 U.S. 32, 37 (2000). See, e.g., Veronica Sch. Dist. 47J v. Acton,
515 U.S. 646 (1995) (finding that “special needs” exist in the public
school context and upholding random drug testing of studentathletes); Nat’l Treasury Emps. Union v. Von Raab 489 U.S. 656
(1989) (upholding the testing of employees directly involved in drug
interdiction or required to carry firearms); Skinner v. Ry. Labor
Execs.’ Assn., 489 U.S. 602 (1989) (upholding the toxicologist testing of railroad employees involved in train accidents or found to be
in violation of particular safety regulations).
2
See, e.g., New York v. Burger, 482 U.S. 691 (1987) (holding that
the State’s authorization of warrantless inspections of junkyards,
concededly for the purpose of uncovering criminality, was not unconstitutional); Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523 (holding that administrative searches by municipal health and safety inspectors when authorized and conducted
49a
Kidd, 563 U.S. at 736; see also City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000) (holding that “Fourth
Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion may be invalid if the scheme as a whole “pursue[s] primarily general crime control purposes.”). Apart from those cases,
the Supreme Court has “almost uniformly rejected invitations to probe subjective intent.” Al-Kidd, 563 U.S.
at 737. As the Supreme Court phrased the inquiry,
when determining whether a search or seizure is reasonable under the Fourth Amendment,” we ask whether
“the circumstances, viewed objectively, justify the challenged action.” Id. at 736. If so, then that action was
reasonable “‘whatever the subjective intent’ motivating
the relevant officials.” Id. (quoting Whren, 517 U.S. at
814).
As such, border search cases do not turn on the purpose or motivation behind the search. Rather, they focus on the degree of intrusiveness in light of the sovereign’s interest at the border. In United States v. Hsi
Heui TSAI, 282 F.3d 690, 694 (9th Cir. 2002), the Ninth
Circuit specifically addressed whether the alleged investigative purpose of a search conducted at the border
took it outside the scope of a “routine” border search.
There, the defendant had flown into Hawaii from Guam.
Id. at 694. The defendant argued that because the INS
inspector knew that he was suspected of criminal activity in Guam, the search of his briefcase was conducted
for purposes of criminal investigation, not as a “routine”
border search. Id. The Ninth Circuit reinforced that
without warrant procedure, lack traditional safeguards which Fourth
Amendment guarantees to individuals).
50a
“[t]he ‘critical factor’ in determining whether a border
search is “routine” is the degree of intrusiveness it
poses.” Id. While acknowledging that there are some
cases like Edmond, in which subjective motivation is not
wholly irrelevant, the Ninth Circuit held this case was
not one of them. Id. at 695. It therefore held that the
search of the defendant’s briefcase was reasonable as a
routine border search notwithstanding the INS inspector’s investigative purpose. Id. at 696.
A review of Ninth Circuit cases specifically addressing digital searches at the border also reveals that the
subjective motivation behind a search does not “serve to
impose a warrant requirement that ordinarily does not
exist at the border.” Id. at 694. In Arnold, the Ninth
Circuit held that warrantless searches of laptops or
other personal electronic storage devices at the border
did not require reasonable suspicion. Id. at 533 F.3d
1003. There, the defendant was stopped by customs officials at the Los Angeles International Airport as he returned from a trip to the Philippines. Id. at 1005. He
was asked by the customs officers to boot his laptop up
and they proceeded to look through two folders of images on his desktop. Id. The folders contained two
nude photos, which led the officers to further examine
the computer. Id. The computer search revealed
child pornography. Id. In determining whether this
search required reasonable suspicion, the Ninth Circuit
turned to the well-grounded border search doctrine.
Id. at 1007. The court held that the search of the laptop, like that of a gas tank, did not “implicate the same
‘dignity and privacy’ concerns as ‘highly intrusive
searches of the person.’ ” Id. at 1008 (quoting United
51a
States v. Flores-Montano, 541 U.S. 149, 152 (2004)).
No reasonable suspicion was therefore required.
The Ninth Circuit in Cotterman narrowed the holding in Arnold and outlined a two-tiered approach for determining what level of suspicion is required for digital
border searches. 709 F.3d at 961. There, agents
seized the defendant’s laptop at the U.S.-Mexico border
in response to an alert of a child molestation conviction.
Id. at 957. The agents conducted an initial search of his
laptop which revealed no incriminating material. Id. at
957-58. Only after the defendant’s laptop was shipped
away and subjected to a comprehensive forensic examination were images of child pornography discovered.
Id. at 958. The Court held that, under Arnold, the initial cursory search of the defendant’s electronic devices
at the border was reasonable even without particularized suspicion. Id. at 960. However, given the intrusive nature of a forensic examination of the electronic
device, to justify the search as reasonable, it had to be
supported by reasonable suspicion. Id. at 968.
The Ninth Circuit’s holding in Cotterman did not depend on whether the search was “investigatory” in nature. It instead rested on the “comprehensive and intrusive nature of a forensic examination.” Id. at 962.
Defendant cites no authority to support his proposition
that if the search is “investigatory,” it ceases being a
border search. In fact, several courts in this District
have refused to decide cases involving searches at the
border on such a distinction. See United States v. Ramos, No. 16-cr-467 JM, 2016 WL 3552140, at *13 (S.D.
Cal. June 3, 2016) (finding that an agent’s manual search
of the defendant’s phone approximately an hour and a
52a
half after his arrest was reasonable under the border
search exception); see also United States v. Caballero,
No. 15-cr-2738, 2016 WL 1546731-BEN, at *4 (S.D. Cal.
Apr. 14, 2016) (applying Cotterman and finding that the
warrantless, post-arrest cursory search of the defendant’s cell phone was permissible under the border
search doctrine); see also United States v. Hernandez,
No. 15-cr-2613, 2016 WL 471943-GPC, at *3 (S.D. Cal.
Feb. 8, 2016) (refusing to make a distinction between
“investigatory” border searches and “protecting the
United States’ sovereign integrity by excluding unwanted persons or things.”).
It is also worth noting that here, there is evidence
that the agents were motivated, at least in part, by the
desire to prevent the entry of additional contraband into
the country. At the hearing, both SA Medrano and SA
Petonak testified that they searched Defendant’s phone,
in part to prepare for Defendant’s interview, but also to
look for communications that might lead to co-conspirators
and messages from co-conspirators that could reveal
other drug loads being smuggled. Thus, even if the
Court were to take into account the subjective intentions
of the agents, the search is nevertheless a border search.
See, e.g., Ramos, 2016 WL 3552140, at *5 (noting that
though the border search may have not uncovered additional information regarding the defendant’s wrongdoing, it may have uncovered more information about
more contraband entering into the country at that time
or the location where the defendant was to drop off or
transfer the drugs).
53a
ii. Reasonable Under Arnold and Cotterman
Therefore, the issue here is whether the searches of
Defendant’s cell phone at the border were reasonable
under Cotterman. The Court holds that they were.
SA Petonak’s warrantless search of Defendant’s cell
phone is clearly permissible under Arnold. Like the
manual search in Arnold, Agent Petonak here performed a cursory search of Defendant’s phone.
SA Medrano’s “logical” search of the phone is also
lawful under the border search doctrine, but merits further discussion. In addition to performing a manual
search of the phone, SA Medrano also used Cellebrite
technology to conduct a “logical download” of the cell
phone. The Government contends that this does not
constitute a forensic search, and as such, no reasonable
suspicion was required. In the alternative, the Government argues that even if the Court were to characterize
the search as “forensic,” Cotterman nevertheless supports it because the agents had reasonable suspicion and
even probable cause.
Here, the Court need not decide whether the use of
Cellebrite technology transforms it from a mere “cursory search” to a “forensic search,” as the “logical download” was supported by at least reasonable suspicion.
SA Medrano searched through Defendant’s phone after
CBP officers found approximately 16.52 kilograms of cocaine in the spare tire of his truck. This not only
amounts to reasonable suspicion, but gives rise to probable cause. The agents had reason to believe that Defendant used his cell phone as an instrumentality of the
54a
crime. Accordingly, SA Medrano’s search of Defendant’s phone using Cellebrite technology was reasonable
under the border search exception.
3.
Good Faith Exception
Even if the search of Defendant’s phone does not fall
within the border search exception, the evidence is nevertheless admissible because the good faith exception to
the exclusionary rule applies here.
Not every Fourth Amendment violation demands applying the exclusionary rule.
Herring v. United
States, 555 U.S. 135, 140 (2009). “[E]vidence should be
suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged
with knowledge, that the search was unconstitutional
under the Fourth Amendment.’ ” United States v.
Schesso, 730 F.3d 1040, 1050-51 (9th Cir. 2013) (quoting
Herring, 555 U.S. at 143).
Here, there is both Supreme Court and Ninth Circuit
law approving the well-grounded border search doctrine. Specifically, Cotterman remains good law and
permits agents to search electronic devices at the border without a warrant. At the hearing, Defendant argued that the good faith exception does not apply because Riley’s warrant requirement is established law.
However, as already discussed above, Riley did not address the border search exception, but instead based its
holding on the search incident to arrest exception. The
Court is aware of no case, post-Riley, that applies its
holding to searches of cell phones conducted at the border. In fact, as already noted, there are several courts
in this District that have upheld a warrantless, postarrest, search of a defendant’s cell phone pursuant to
55a
the border search doctrine. The Court therefore finds
that the agents in this case searched Defendant’s cell
phone in reliance on the border search doctrine. The
good faith exception to the exclusionary rule thus applies.
Defendant’s motion to suppress evidence derived
from the search of his cell phone at the POE is therefore
DENIED.
B. Return of Property Under Rule 41(g)
Defendant moves for the return of his cell phone pursuant to Federal Rule of Criminal Procedure 41(g),
which “provides a mechanism by which a person may
seek to recover property seized by federal agents.”
Ordonez v. United States, 680 F.3d 1135, 1137 (9th Cir.
2012). The text of the rule states:
A person aggrieved by an unlawful search and seizure of property or by deprivation of property may
move for the property’s return. The motion must be
filed in the district where the property was seized.
The court must receive evidence on any factual issue
necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Fed. R. Crim. P. 41(g). Unless “the property in question is no longer needed for evidentiary purpose, either
because trial is complete, the defendant has pleaded
guilty, or . . . the government has abandoned its investigation,” the movant bears the burden of demonstrating that he or she is entitled to lawful possession of
56a
the property. United States v. Martinson, 809 F.2d
1364, 1369 (9th Cir. 1987); United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, n.2 (9th Cir.
2010).
Here, as discussed above, Defendant’s cell phone was
not subject to an unlawful search and seizure. Defendant argues that because the government has already
seized the data from his phone, it no longer needs the
physical phone. Nevertheless, the cell phone serves an
evidentiary purpose as the case remains open and it was
seized as an alleged instrumentality of the charged
crime. As such, Defendant’s motion for return of his
cell phone is DENIED WITHOUT PREJUDICE.
C. Suppression of Statements Under Rule 5
Defendant argues that his statements must be suppressed because the Government delayed his initial appearance before a Magistrate Judge in violation of Federal Rule of Criminal Procedure 5.
Rule 5 of the Federal Rules of Criminal Procedure
states that, “[a] person making an arrest within the
United States must take the defendant without unnecessary delay before a magistrate . . . ”. Fed. R.
Crim. P. 5(a)(1)(A) (emphasis added). Unnecessary
delay “must be determined in light of all the facts and
circumstances of the case.” Fed. R. Crim. P. 5 advisory
committee’s notes. The McNabb-Mallory rule “generally render[s] inadmissible confessions made during periods of detention that violate the prompt presentment
requirement of [Rule] 5(a).” Corley v. United States,
556 U.S. 303, 303 (2009). In response to the application
of McNabb-Mallory in some federal courts, Congress
57a
enacted 18 U.S.C. § 3501(c). See Corley, 556 U.S. at
322. Section 3501(c), provides that:
In any criminal prosecution by the United States
. . . , a confession made . . . by a defendant
therein, while such person was under arrest . . . ,
shall not be inadmissible solely because of delay in
bringing such person before a magistrate judge
. . . if such confession is found by the trial judge to
have been made voluntarily . . . and if such confession was made . . . within six hours immediately following his arrest . . . [this six-hour time
limit] shall not apply in any case in which the delay in
bringing such person before magistrate judge . . .
is found by the trial judge to be reasonable considering the means of transportation and the distance to
be traveled to the nearest available such magistrate
judge or other officer.
§ 3501(c). In interpreting section 3501, the Supreme
Court in Corley held that it modified McNabb-Mallory,
without supplanting it. Id. at 322. The Supreme Court
established a two-part test for applying the McNabbMallory rule in light of the six-hour safe harbor period
in section 3501(c). Id. at 322; see also United States v.
Pimental, 755 F.3d 1095, 1101 (9th Cir. 2014) (applying
the two-part test established in Corley). First, a district court must determine “whether the defendant confessed within six hours of arrest (unless a longer delay
was ‘reasonable considering the means of transportation
and the distance to be traveled to the nearest available
[magistrate judge]’).”
Id. If the confession falls
within the six-hour period, “it is admissible . . . so
long as it was ‘made voluntarily and . . . the weight
58a
to be given it is left to the jury.’ ” Id. If the defendant,
however, made the confession before presentment and
beyond six hours, a court must find “whether delaying
that long was unreasonable or unnecessary under the
McNabb-Mallory cases, and if it was, the confession is
to be suppressed.” Id.
Defendant cites to Pimental to argue that his presentment on the day following his arrest violated Rule 5
and, as such, the statements he made before presentment should be suppressed. The defendant in Pimental was arrested on a Friday morning at the San Ysidro
POE, but was not presented before a Magistrate Judge
until the following Tuesday. 755 F.3d at 1098-99.
There, the defendant made the incriminating statements more than six hours after his arrest. Id. at 1101.
Because the section 3501(c) safe harbor did not apply,
the Ninth Circuit’s analysis turned on whether the delay
was “unreasonable or unnecessary under the McNabbMallory cases.” Id. The Ninth Circuit ultimately
held that the delay was unnecessary and reversed the
district court’s denial of the defendant’s motion to suppress. Id. at 1104.
Defendant argues that his case “is on all fours with”
Pimental, yet he ignores one crucial distinguishing fact.
Here, Defendant made the statements at approximately
9:50 a.m.3 —less than six hours after being arrested.
Under Ninth Circuit law, because the statements were
The parties dispute the time of Defendant’s arrest. Defendant
argues that he was arrested at 6:45 a.m. The Government contends that he was arrested at 8:00 a.m. The Court need not determine the time of arrest because it is undisputed that the statements were made within six-hours of being arrested at either time.
3
59a
made within the six-hour safe harbor, they are admissible so long as they were made voluntarily. As determined by the Court during the hearing on this motion,
Defendant knowingly, intelligently and voluntarily waived
his rights and proceeded to make the statements at issue.
Moreover, the Court does not find that there have
been a series of Rule 5 violations for the purpose of obtaining confessions so as to warrant suppression of Defendant’s statements in this case.
Consequently, Defendant’s motion to suppress his
statements is DENIED.
III.
CONCLUSION
For these reasons, Defendant’s motion to suppress
and motion for return of property are DENIED.
IT IS SO ORDERED.
Dated: Nov. 23, 2016
/s/ BARRY TED MOSKOWITZ, Chief Judge
BARRY TED MOSKOWITZ
United States District Court
60a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 17-50151
D.C. No. 3:16-cr-01770-BTM-1
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
MIGUEL ANGEL CANO, DEFENDANT-APPELLANT
Filed: Sept. 2, 2020
ORDER
Before: SUSAN P. GRABER and JAY S. BYBEE, Circuit Judges, and M. DOUGLAS HARPOOL,* District
Judge.
Order; Dissent by Judge BENNETT
The panel judges have voted to deny Plaintiff-Appellee’s
petition for rehearing. Judge Graber voted to deny the
petition for rehearing en banc, and Judges Bybee and
Harpool recommended denying the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote
The Honorable M. Douglas Harpool, United States District
Judge for the Western District of Missouri, sitting by designation.
*
61a
on en banc rehearing. The matter failed to receive a
majority of votes of non-recused active judges in favor
of en banc consideration. Fed. R. App. P. 35.
Plaintiff-Appellee’s petition for rehearing and petition for rehearing en banc, filed January 2, 2020, are DENIED.
BENNETT, Circuit Judge, with whom CALLAHAN, M.
SMITH, R. NELSON, BADE and VANDYKE, Circuit
Judges, join, dissenting from the denial of rehearing
en banc:
In 2016, Defendant Miguel Cano entered the United
States from Mexico, and a routine search of his truck
turned up 31 pounds of cocaine hidden in his spare tire.
As the panel correctly noted, border officials “had reason to suspect that Cano’s [cell] phone would contain evidence leading to additional drugs.” United States v.
Cano, 934 F.3d 1002, 1021 (9th Cir. 2019).1 And so,
those border officials—objectively relying on decisions
from the Supreme Court and a recent en banc decision
from our court—searched the phone. Unsurprisingly
they found more evidence of Cano’s guilt. Despite an
unbroken line of cases authorizing the border search
here, the panel reversed Cano’s convictions because in
their view, reasonable suspicion of criminal activity cannot justify a forensic search of Cano’s phone. Instead,
The district court had found that “[t]his not only amounts to reasonable suspicion, but gives rise to probable cause.” United States
v. Cano, 222 F. Supp. 3d 876, 882 (S.D. Cal. 2016) rev’d, 934 F.3d
1002 (9th Cir. 2019).
1
62a
the panel held that absent a warrant, border officials,
with reasonable suspicion or probable cause of other
criminal activity, could only forensically search a cell
phone to see if it contained contraband. And since effectively the only contraband a cell phone can contain is
child pornography, 2 the only permissible forensic search
at the border is one for child pornography. Even then,
only if agents have reasonable suspicion the phone contains child pornography.
The government has referred to the panel’s decision as an “outlier.”3 It is that,
but far more. The Supreme Court has told us that a
border search is reasonable simply because it takes
place at the border. The Court has also instructed that
the sovereign’s power at the border is at its “zenith.”
The limits the panel placed on border searches ignores
the Court’s teachings and, as a result, makes our borders far more porous and far less safe.
Border officials in our circuit are now constitutionally barred from forensically searching a traveler’s cell
phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the
traveler is about to commit in the United States; evidence the traveler is entering the United States under a
false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related
Cano, 934 F.3d at 1021.
Brief for the United States in Opposition at 27, Williams v.
United States, No. 19-1221 (U.S. June 19, 2020).
2
3
63a
crimes; or evidence of non-child pornography contraband. 4 This is the sovereign power at its nadir, not its
zenith.
We should have taken this case en banc to correct the
panel’s errors, and I respectfully dissent from our failure to do so.
I.
On July 25, 2016, Miguel Cano entered the United
States from Tijuana for the seventh time that summer. 5
The opinion quotes language from Carroll v. United States, 267
U.S. 132 (1925) describing the government’s interest in controlling
who may enter the country. See United States v. Cano, 934 F.3d
1002, 1013 (9th Cir. 2019). But the holding of Cano leaves no room
for this interest—“the border search exception authorizes warrantless searches of a cell phone only to determine whether the phone
contains contraband.” 934 F.3d at 1018 (emphasis added). Nor
does the opinion mention the government’s national security interest
at the border. See, e.g., United States v. Kolsuz, 890 F.3d 133, 143
(4th Cir. 2018) (concluding that some transnational offenses implicating national security interests “go[] to the heart of the border
search exception”); United States v. Boumelhem, 339 F.3d 414, 423
(6th Cir. 2003) (noting that the sovereign interest to protect itself
includes “significant government interests in the realms of national
security and relations with other nations”); see also Tabbaa v.
Chertoff, 509 F.3d 89, 97 (2d Cir. 2007) (recognizing that a “crucial”
aspect of Customs and Border Protection’s authority “is to ‘prevent
terrorist attacks within the United States’ and ‘reduce the vulnerability of the United States to terrorism.’ ” (quoting 6 U.S.C.
§ 111(b)(1)).
5
He had crossed the border six times that summer, sometimes
staying less than thirty minutes in the United States. Cano, 934 F.3d
at 1008. He was twice referred to secondary inspection, but no contraband was found. Id.
4
64a
Cano, 934 F.3d at 1008. During a secondary inspection, a narcotics dog alerted near the spare tire of Cano’s
truck. Id. A Customs and Border Protection (CBP)
officer discovered about 31 pounds of cocaine in 14
vacuum-sealed packages inside the spare tire. Id.
CBP officers arrested Cano and seized his cell phone.
Id. They then called Homeland Security Investigations, which dispatched two agents to investigate. Id.
The agents manually searched Cano’s phone and questioned Cano after he waived his Miranda rights. Id.
Cano told them that he moved to Tijuana to look for
work in San Diego because work was slow in Los Angeles, and he was going to a carpet store in Chula Vista to
seek work. Id. He also explained that he deleted his
text messages before crossing the border on his cousin’s
advice “just in case” he was pulled over by Mexican police. Id. One of the agents conducted a second manual search of the phone during the interview, wrote
down some of the phone numbers in the phone’s call log,
noted that two new text messages had arrived after
Cano crossed the border, and took a picture of those
messages. Id. The agent then used Cellebrite software to download data from the phone.6 Agents reviewed the download after the interview and saw a list
of Cano’s calls. Id. at 1009. None of the numbers
Cano called “corresponded to carpeting stores in San
Diego.” Id.
A Cellebrite “logical download” allows the government “access
[to] text messages, contacts, call logs, media, and application data on
a cell phone and to select which types of data to download.” Id. at
1008-09. But the software does not allow access to data stored
within third-party applications. Id. at 1009.
6
65a
Cano was indicted for importing cocaine and moved
to suppress the evidence obtained from the warrantless
searches of his phone at the border. Id. The district
court denied the motion, finding the manual search was
“clearly permissible” and “the agents had reasonable
suspicion and even probable cause” to perform the “logical download.” Cano, 222 F. Supp. 3d at 882. The
government introduced, and relied on, evidence obtained from the phone at trial. Cano in turn presented
a third-party culpability defense, claiming that his cousin
placed the drugs in Cano’s spare tire without Cano’s
knowledge. Cano, 934 F.3d at 1009. The jury was
hung after the first trial and convicted Cano at the second. Id. at 1010.
A panel of this court reversed because “the district
court erred in denying Cano’s motion to suppress.” Id.
at 1010. The panel agreed with Cano that the warrantless searches of his phone at the border violated the
Fourth Amendment because “border searches are limited in both purpose and scope to searches for contraband.” Id. at 1016-17. The panel drew a “distinction
between seizing goods at the border because their importation is prohibited and seizing goods at the border
because they may be useful in prosecuting crimes.” Id.
at 1018. From this, the panel imposed “two practical
limitations on warrantless border searches.” Id. at
1019. First, border officials can search for only contraband (rather than evidence of contraband-related crimes)
because otherwise the search is “untethered” from the
exception. Id. Second, border officials need reasonable suspicion of digital contraband (like child pornography) concealed within a cell phone to forensically search
a cell phone.
Id. at 1020.
Otherwise, the panel
66a
opined, the government could forensically search “every
electronic device of anyone arrested at the border” and
this would go against “the protections laid out in Riley” 7
simply because the search occurred at the border. Id.
Applying this new view of the border search exception to the facts of the case, the panel found that the second manual search of the phone was outside the scope of
the border search exception irrespective of the reasonable suspicion of border-related crimes. Id. at 1019.
The agent could not record the phone numbers or photograph the two messages received because “[t]hose actions have no connection whatsoever to digital contraband.” Id. Thus, the second manual search was unreasonable. And the panel held if the use of the Cellebrite software to download some of the phone’s contents was a forensic search, it was unreasonable because
agents had no reasonable suspicion that there was contraband on the phone. Id. at 1020. The panel also
concluded that once a person has been arrested “there
is no reason why border officials cannot obtain a warrant
before conducting their forensic search” because new
technology allows for faster processing of warrant applications. Id.
In Riley v. California, 573 U.S. 373 (2014), the Court held “a warrant is generally required before . . . a search [for information
on a cell phone], even when a cell phone is seized in
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.