Opposition Brief — United States, Petitioner v. Miguel Angel Cano

Supreme Court briefMay 12, 2021

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No. 20-1043

_____________

IN THE

SUPREME COURT OF THE UNITED STATES

United States of America,

Petitioner,

Miguel Angel Cano,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

Jeffrey L. Fisher

STANFORD LAW SCHOOL

SUPREME COURT LITIGATION

CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Harini P. Raghupathi

Counsel of Record

FEDERAL DEFENDERS

OF SAN DIEGO, INC.

225 Broadway, Suite 900

San Diego, CA 92101

(619) 234-8467

Harini_Raghupathi@fd.org

QUESTION PRESENTED

Whether extensive searches of respondent Miguel Angel Cano’s cell phone

incident to his arrest at the border—without a warrant or any individualized

suspicion that the phone contained contraband—violated the Fourth Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 2

A. Factual background ....................................................................................... 2

B. Procedural history ......................................................................................... 5

REASONS FOR DENYING THE WRIT ....................................................................... 8

Any conflict regarding the constitutionality of the searches here under

the Fourth Amendment is shallow and nascent ................................................ 8

II.

Further percolation is warranted ..................................................................... 13

A. More time is necessary to understand the practical import of any

divergence between the First and Ninth Circuits ...................................... 13

B. Lower courts have given little attention to various legal

considerations that are relevant to how the Fourth Amendment

applies to searches of cell phones at the border ......................................... 14

C. Completing the shift to cloud storage will alter the technological

landscape in relevant ways ......................................................................... 21

D. Additional percolation would create breathing space for Congress .......... 22

III.

There is no immediate need to address how the border-search doctrine

applies to cell phones ........................................................................................ 23

A. The Government can use other means to conduct investigations at

the border ..................................................................................................... 23

B. The Ninth Circuit’s contraband rule would not prevent the

Government from dealing with the hypothetical scenarios it raises......... 25

IV.

The Ninth Circuit is correct that the Fourth Amendment was violated ........ 26

A. The Ninth Circuit’s scope holding is sound ................................................ 26

B. The Fourth Amendment was violated here for other reasons as well....... 29

CONCLUSION............................................................................................................. 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adlerstein v. CBP,

2020 WL 5846600 (D. Ariz. 2020) ......................................................................... 14

Alasaad v. Mayorkas,

988 F.3d 8 (1st Cir. 2021), petition for cert. filed sub nom.

Merchant v. Mayorkas (No. 20-1505) ............................................. 9, 11, 12, 15, 19

Alasaad v. Nielsen,

419 F. Supp. 3d 142 (D. Mass. 2019) ........................................................ 11, 12, 13

Arizona v. Gant,

556 U.S. 332 (2009)................................................................................................ 28

Bennett v. Spear,

520 U.S. 154 (1997)................................................................................................ 29

Boyd v. United States,

116 U.S. 616 (1886)................................................................................................ 28

Byrd v. United States,

138 S. Ct. 1518 (2018)............................................................................................ 17

Carpenter v. United States,

138 S. Ct. 2206 (2018)...................................................................................... 17, 19

Carroll v. United States,

267 U.S. 132 (1925)............................................................................................ 6, 17

City of Ontario v. Quon,

560 U.S. 746 (2010)................................................................................................ 21

Coolidge v. New Hampshire,

403 U.S. 443 (1971)................................................................................................ 14

Gowadia v. United States,

2015 WL 5838471 (D. Haw. 2015) ................................................................... 13-14

Lo-Ji Sales, Inc. v. New York,

442 U.S. 319 (1979)................................................................................................ 19

Marcus v. Search Warrant,

367 U.S. 717 (1961)................................................................................................ 19

Maryland v. Buie,

494 U.S. 325 (1990)................................................................................................ 28

Maryland v. King,

569 U.S. 435 (2013)................................................................................................ 20

Missouri v. McNeely,

569 U.S. 141 (2013).......................................................................................... 16, 24

Packingham v. North Carolina,

137 S. Ct. 1730 (2017)............................................................................................ 21

Riley v. California,

573 U.S. 373 (2014)........................................................................................ passim

Terry v. Ohio,

392 U.S. 1 (1968).................................................................................................... 28

United States v. 12 200-Ft. Reels of Super 8mm. Film,

413 U.S. 123 (1973).......................................................................................... 22, 26

United States v. Caballero,

178 F. Supp. 3d 1008 (S.D. Cal. 2016) .................................................................. 15

United States v. Cotterman,

709 F.3d 952 (9th Cir. 2013) (en banc), cert. denied, 571 U.S.

1156 (2014)............................................................................................... 6, 8, 15, 22

United States v. Flores-Montano,

541 U.S. 149 (2004).......................................................................................... 27, 30

United States v. Gurr,

471 F.3d 144 (D.C. Cir. 2006), cert. denied, 550 U.S. 919 (2007) ........................ 11

United States v. Jones,

565 U.S. 400 (2012).................................................................................... 19, 20, 22

United States v. Kolsuz,

890 F.3d 133 (4th Cir. 2018).............................................................................. 9, 31

United States v. Molina-Isidoro,

267 F. Supp. 3d 900 (W.D. Tex. 2016), aff’d, 884 F.3d 287

(5th Cir. 2018) ........................................................................................................ 15

United States v. Molina-Isidoro,

884 F.3d 287 (5th Cir. 2018)................................................................ 10, 15, 16, 25

United States v. Montoya de Hernandez,

473 U.S. 531 (1985).......................................................................................... 27, 30

United States v. Qin,

2020 WL 7024650 (D. Mass. 2020)........................................................................ 13

United States v. Ramirez,

2019 WL 3502913 (W.D. Tex. 2019)...................................................................... 24

United States v. Ramsey,

431 U.S. 606 (1977).......................................................................... 6, 18, 19, 21, 27

United States v. Touset,

890 F.3d 1227 (11th Cir. 2018).............................................................................. 11

United States v. Vergara,

884 F.3d 1309 (11th Cir. 2018)........................................................................ 15, 24

United States v. Wanjiku,

919 F.3d 472 (7th Cir. 2019).................................................................................. 10

United States v. Williams,

942 F.3d 1187 (10th Cir. 2019), cert. denied, 141 S. Ct. 235 (2020) ................ 1, 10

Warden v. Hayden,

387 U.S. 294 (1967).......................................................................................... 28, 29

Constitutional Provisions

U.S. Const., amend. I ................................................................................................... 19

U.S. Const., amend. IV ........................................................................................ passim

Statutes

An Act to Provide More Effectually for the Collection of the Duties Imposed

by Law on Goods, Wares and Merchandise Imported into the United

States, and on the Tonnage of Ships or Vessels, ch. 35, §§ 48-51, 1 Stat.

145 (1790)............................................................................................................... 27

An Act to Regulate the Collection of the Duties Imposed by Law on the

Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises

Imported into the United States, ch. 5, § 24, 1 Stat. 29 (1789) ........................... 18

CLOUD Act, Pub. L. No. 115-141, 132 Stat. 348 (2018)............................................. 23

Securing America’s Ports Act, Pub. L. No. 116-299, 134 Stat. 4906 (2021) .............. 26

Trade Facilitation and Trade Enforcement Act, Pub. L. No. 144-125,

130 Stat. 122, 205 (2015) ....................................................................................... 23

19 U.S.C. § 482 ............................................................................................................. 29

19 U.S.C. § 482(a)......................................................................................................... 18

19 U.S.C. § 1583(c)(2)................................................................................................... 18

19 U.S.C. § 1583(d)....................................................................................................... 18

19 U.S.C. § 1595(a)(1) .................................................................................................. 18

Legislative Materials

Examining Warrantless Smartphone Searches at the Border: Hearing

Before the Subcomm. on Fed. Spending Oversight & Emergency

Mgmt. of the S. Comm. on Homeland Sec. & Gov. Affairs, 115th

Cong. (2018). .......................................................................................................... 23

Other Authorities

Black’s Law Dictionary (11th ed. 2019) ...................................................................... 13

Burke, Alafair S., Consent Searches and Fourth Amendment

Reasonableness, 67 Fla. L. Rev. 509 (2015).......................................................... 24

Donohue, Laura K., Customs, Immigration, and Rights: Constitutional

Limits on Electronic Border Searches, 128 Yale L.J.F. 961 (2019) ................ 26-27

U.S. Customs & Border Protection, Directive No. 3340-049A, Border

Search of Electronic Devices (2018) ...................................................................... 20

U.S. Dep’t Homeland Security, No. PIA-053(a), Privacy Impact Assessment

for the U.S. Border Patrol Digital Forensics Programs (2020) ............................ 20

U.S. Dep’t Homeland Security, Office of Insepctor General, OIG-19-10,

CBP’s Searches of Electronic Devices at Ports of Entry (2018) .......................... 22

U.S. Immigration and Customs Enforcement, Directive No. 7-6.1,

Border Searches of Electronic Devices (2009) ...................................................... 20

INTRODUCTION

In this case, the Ninth Circuit held that neither a warrant nor individualized

suspicion is required to conduct manual searches of certain types of content on cell

phones seized incident to arrest at the border. The court of appeals concluded that

the particular searches at issue here nevertheless violated the Fourth Amendment

because they exceeded the permissible scope of a border search. Specifically, it held

that border searches may be conducted only to prevent contraband from entering

the country, whereas the agents here searched the contents of respondent Miguel

Angel Cano’s phone even after it was apparent that it contained no digital

contraband.

The Government asks this Court to grant certiorari to review the Ninth

Circuit’s holding on the permissible scope of a border search. The Court should deny

that request. The Ninth Circuit’s reasoning is sound, and there is at most one court

of appeals, the First Circuit, whose precedent might now require it to decide this

case differently. Moreover, the practical import of any divergence between these two

circuits could well be minimal.

Resolving the narrow question the Government frames would also require the

Court simultaneously to address whether a warrant—or at least some level of

individualized suspicion of contraband—is required to search digital devices

incident to an arrest at the border. The Court denied certiorari earlier this Term in

a case raising that issue, see United States v. Williams, 942 F.3d 1187 (10th Cir.

2019), cert. denied, 141 S. Ct. 235 (2020), and the issue still has not percolated

sufficiently in the lower courts. Among other things, the lower courts have yet to

fully consider how this Court’s relatively recent decision in Riley v. California, 573

U.S. 373 (2014), positive law dating back to the Founding, the expressive nature of

the digital content at issue, and the Government’s retention policies may affect the

constitutional analysis. Additionally, technological developments may soon

transform the relevant terrain, and legislative action may obviate any need for this

Court to address the issue at all.

Meanwhile, waiting for these evolving dynamics to play out will not threaten

any pressing governmental interest or disrupt the daily work of border officials. The

Government regularly seeks warrants to search cell phones incident to arrest at the

border. And when obtaining a warrant is not feasible, several legal doctrines other

than the border-search exception may enable agents to search phones. At any rate,

this case is certainly not one where agents had any need to dispense with seeking a

warrant before searching Mr. Cano’s phone for evidence of border-related crime. If a

future scenario arises in which the Government can truly claim that it needs to

conduct a warrantless search of a cell phone at the border for such evidence, the

Court could then consider whether to extend the border-search exception in the

manner the Government requests here. At this moment, the Court’s intervention

would be premature.

STATEMENT OF THE CASE

Factual background

1. Respondent Miguel Angel Cano is a lawful permanent resident of the

United States. For over twenty years, he lived with his wife and two children

outside of Los Angeles, where he worked with his father and brother in the carpet

and flooring-installation trade. In June 2016, the family business experienced a

downturn, leaving Mr. Cano with just two full days of work per week. In July, he

temporarily relocated to Tijuana, Mexico, where he could stay with his cousin for

free and look for work in nearby San Diego.

2. Later that month, Mr. Cano planned another of his regular border

crossings from Tijuana. As usual, he was carrying his smartphone. He arrived early

in the morning at the San Ysidro Port of Entry and underwent the standard

primary inspection. C.A. E.R. 16. He was then randomly selected for a secondary

inspection. During that inspection, a narcotics-detecting dog alerted agents to a

spare tire mounted on the exterior of his truck. Pet. App. 3a. At 6:45 AM, CBP

officers took Mr. Cano into custody, placing him in ankle cuffs inside a nearby

security office and removing all items on his person. C.A. E.R. 4, 16-17. CBP agents

then ran the truck through an x-ray machine, which revealed anomalies in the

spare tire. An agent removed the tire and cut it open, finding cocaine. At 8:00 AM,

CBP officers formally arrested Mr. Cano and summoned Homeland Security

Investigations (HSI), a unit that investigates drug-smuggling cases. Id. 16-17.

About one hour later, HSI Agents Petonak and Medrano arrived. C.A. E.R.

17. At that point, customs agents had possessed Mr. Cano’s phone for over two

hours. Agent Petonak picked up Mr. Cano’s phone and manually scrolled through

its digital contents, including the call log, text messages, and third-party messaging

apps WhatsApp and Facebook Messenger. Id. 188-89. Agent Petonak later testified

that he was trying to “find some brief investigative leads in the current case” and to

“see if there [was] evidence of other things coming across the border.” Pet. App. 4a

(internal quotation marks omitted).

After another hour, Agent Medrano conducted a second manual search of the

phone, which was continuing to receive incoming messages. He again examined the

call log, text message folder, and third-party messaging apps. Pet. App. 4a-5a; C.A.

E.R. 123-24. He wrote down the phone numbers associated with some of Mr. Cano’s

incoming, missed, and outgoing calls. C.A. E.R. 123. He also noted two WhatsApp

messages from Mr. Cano’s cousin: one received at 6:24 AM, just as Mr. Cano was

arriving at the border (“Good morning”), and another received at 12:03 PM, hours

after the phone had been seized (“Primo are you coming to the house?”). Id. 123,

1064. Agent Medrano took a picture of the WhatsApp screen showing both

messages. Pet. 6.

Agent Medrano also conducted a “logical download” search of Mr. Cano’s

phone using Cellebrite software. Pet. App. 5a. Such a download extracts the digital

contents of apps holding text messages, contacts, call logs, multimedia messages

(i.e., photos and videos), calendar events, notes, task lists, and “application data”

from a cell phone. C.A. E.R. 410, 1027. The results of the download can then be

viewed and saved in government databases for later inspections.

3. Two weeks later, with Mr. Cano still in custody, the Government sought

and received a search warrant for the phone. Pet. 6. The resulting search did not

produce any new, pertinent evidence. Id.

Procedural history

1. The Government charged Mr. Cano with conspiracy to import and

importation of cocaine into the United States. Pet. 6-7. Before trial, it dropped the

conspiracy charge. Following a trial on the remaining charge, the jury could not

reach a verdict, and the district court declared a mistrial. Id. 7.

On retrial, Mr. Cano maintained (as he had in the first trial) that, on the day

in question, he intended to look for work at a carpet store in the San Diego area.

C.A. E.R. 808-09. Mr. Cano explained that his cousin must have placed the drugs in

the spare tire of his truck without his knowledge. Pet. App. 6a-8a. Mr. Cano further

explained that his cousin was a longtime member of a gang known to smuggle drugs

across the border. Id. 36a-37a. The cousin also had access to the truck and had

borrowed it shortly before Mr. Cano attempted to cross the border. C.A. E.R. 812-13.

To fend off this defense, the Government presented evidence procured from

the three post-arrest, warrantless searches of Mr. Cano’s cell phone. Specifically,

the Government introduced the empty text message log, the call log, and the two

WhatsApp messages, including one that Mr. Cano received after his phone had

already been seized. Pet. 7. The Government also argued in closing that Mr. Cano

deleted his text messages before crossing the border because he wanted to hide any

drug-related communications from the agents. C.A. E.R. 946-47. Mr. Cano had

objected that this evidence should be excluded because the searches of his cell phone

violated the Fourth Amendment. But the district court overruled that objection.

The jury found Mr. Cano guilty, and the district court sentenced him to fiftyfour months of imprisonment. Pet. 2.

2. The Ninth Circuit reversed and remanded. As relevant here, it held that

“most” of the evidence the Government introduced at trial from Mr. Cano’s cell

phone had been procured in violation of the Fourth Amendment. Pet App. 33a.

As an initial matter, the Ninth Circuit adhered to its previous holding in

United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), cert. denied,

571 U.S. 1156 (2014), that federal agents need not procure warrants to search cell

phones at the border. Pet App. 17a-20a. Rebuffing the contention that this Court’s

intervening decision in Riley v. California, 573 U.S. 373 (2014), required

reconsideration of Cotterman, the court of appeals reaffirmed Cotterman’s holdings

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.” Pet. App. 19a-20a.

The court of appeals then turned to whether the searches here “exceeded the

proper scope of a border search.” Pet. App. 21a. Stressing that the border-search

exception is rooted in the right of the sovereign to enforce customs laws and

interdict contraband, id. 13a-15a (citing Carroll v. United States, 267 U.S. 132, 154

(1925), and United States v. Ramsey, 431 U.S. 606, 620 (1977)), the court of appeals

held that the exception “authorizes warrantless searches of a cell phone only to

determine whether the phone contains contraband,” id. 26a.

Applying that limitation on the permissible scope of border searches, the

court of appeals held that the agents’ initial manual search of the text messages app

on Mr. Cano’s phone—in which they discovered that he had deleted all of his text

messages before arriving at the port of entry—was permissible because at least one

form of contraband (child pornography) “may be sent via text message.” Pet. App.

27a. The court of appeals also condoned the agents’ initial inspection of the phone’s

call log “to verify that the log contained a list of phone numbers” and not any digital

contraband. Id. But the agents’ continued search of the phone, during which they

recorded “phone numbers and [the WhatsApp] messages” received after Mr. Cano’s

arrival at the port of entry, violated the Fourth Amendment because by that point it

was clear “that the phone lacked digital contraband.” Id. 27a-28a.

The court of appeals further held that “if the Cellebrite search of Cano’s cell

phone qualifies as a forensic search, the entire search was unreasonable under the

Fourth Amendment.” Pet. App. 30a. That was so, the court of appeals reasoned,

because the “reasonable suspicion” test in the context of border searches requires

reasonable suspicion of contraband, and the agents did not “reasonably suspect that

the cell phone . . . itself contain[ed] contraband.” Id. “In cases such as this,” the

Ninth Circuit stated, “where the individual suspected of committing the borderrelated crime has already been arrested, there is no reason why border officials

cannot obtain a warrant before conducting their forensic search.” Id. The court of

appeals, however, “decline[d] to reach” whether “the Cellebrite search constitute[d]

a forensic search,” sending the issue back for the district court to address in the first

instance. Id. 30a n.12, 33a-34a.

Finally, the court of appeals held that the good-faith exception to the

exclusionary rule did not apply here. The strand of that exception relating to prior

judicial precedent applies “only when the officials have relied on ‘binding appellate

precedent.’” Pet. App. 33a (citation omitted). The HSI agents here “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.” Id. 32a.

3. The Ninth Circuit denied the Government’s petition for rehearing en banc.

Pet. App. 61a.

REASONS FOR DENYING THE WRIT

Any conflict regarding the constitutionality of the searches here is shallow

and nascent.

Assessing whether a search of a cell phone at the border comports with the

Fourth Amendment depends on two sub-inquiries. First, did the agent have the

requisite level of suspicion (if any) to conduct the search? Second, if so, did the scope

of the agent’s search exceed constitutional limitations? The requisite level of

suspicion for border searches of cell phones may inform the permissible scope, and

vice versa. For example, any particularized suspicion requirement will imply a

certain permissible scope in accordance with that suspicion; a warrant requirement

will result in even more explicit directives about what places on a phone can be

searched and for what information. On the other hand, if no suspicion is required

(at least in particular circumstances) to search cell phones, that may create a

greater need to constrain the scope of such searches. In short, to determine whether

a cell phone search at the border comports with the Fourth Amendment, it is

necessary to consider both the requisite level of suspicion and the proper scope.

None of the courts of appeals the Government references in its petition has

resolved both of those sub-issues in a manner that would dictate a different outcome

here. After the Government filed its petition, the First Circuit issued an opinion

indicating it might have held the searches here comported with the Fourth

Amendment. Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021), petition for cert. filed

sub nom. Merchant v. Mayorkas (No. 20-1505). But that holding arose in a very

different context and creates at most a nascent disagreement with uncertain

practical import.

1. Contrary to the Government’s suggestions, there is no conflict between the

Ninth Circuit and the Fourth or Tenth Circuits concerning whether the searches

conducted here violated the Fourth Amendment.

In United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), the Fourth Circuit

rejected a defendant’s argument that evidence seized during a border search of his

cell phone should have been suppressed, ultimately holding that the good-faith

exception to the exclusionary rule permitted introduction of the evidence. Id. at 137.

The Government notes that the Fourth Circuit ruled that border searches of digital

devices need not be limited to inspections for contraband. See Pet. 9-10. But the

Fourth Circuit did “not resolve” the overarching question whether the search in that

case violated the Fourth Amendment. Kolsuz, 890 F.3d at 147. Instead, the Fourth

Circuit reserved the question whether heightened suspicion or even a warrant

might be required for any search of a digital device (manual or forensic) at the

border. Id. at 137, 141 (“What precisely that standard should be—whether

reasonable suspicion is enough, as the district court concluded, or whether there

must be a warrant based on probable cause . . . is a question we need not resolve.”).

Accordingly, it is unclear whether the Fourth Circuit would have held that the

warrantless searches at issue here comported with the Fourth Amendment.

In United States v. Williams, 942 F.3d 1187 (10th Cir. 2019), cert. denied,

141 S. Ct. 235 (2020), a border agent searched the electronic devices of a traveler

suspected of having connections to terrorist attacks. The Tenth Circuit deemed the

search constitutional. As the Government notes, the Tenth Circuit rejected the

argument that “border agents are tasked exclusively with upholding customs laws

and rooting out the importation of contraband.” Pet. 24 (quoting Williams, 942 F.3d

at 1191). But the key word there is “exclusively.” As the Government itself stressed

when opposing certiorari in that case, the Tenth Circuit found the fact that the

defendant “posed a threat to ‘national security’” independently justified the border

search. Williams BIO at 22 (No. 19-1221) (citation omitted).

No national-security concerns were present here, and the Government “does

not construe [the Ninth Circuit’s decision below] to foreclose reliance” on “nationalsecurity” grounds to “sustain border searches of cell phones in appropriate

circumstances.” Pet. 19 n.*. Thus, the Tenth Circuit’s decision does not conflict with

the decision below.

2. The Government also claims the Ninth Circuit’s decision is in “tension”

with decisions from the Fifth and Seventh Circuits. Pet. 24. But both of those cases

were resolved under the good-faith exception. Neither adopted a Fourth

Amendment rule that would have required the courts to hold that the searches here

were constitutional. See United States v. Molina-Isidoro, 884 F.3d 287, 290 (5th Cir.

2018) (“We do not decide the Fourth Amendment question.”); United States v.

Wanjiku, 919 F.3d 472, 479 (7th Cir. 2019) (“[W]e need not adopt either of these

positions, and indeed may avoid entirely the thorny issue of the appropriate level of

suspicion required . . . because these agents acted in good faith.”).

3. Nor do the two other cases the Government cites conflict with the decision

below. The Eleventh Circuit held in United States v. Touset, 890 F.3d 1227 (11th

Cir. 2018), that a border search of digital devices comported with the Fourth

Amendment where agents “had a particularized and objective basis for suspecting

that [the defendant] possessed child pornography on his electronic devices.” Id. at

1237 (citation and internal quotation marks omitted). And the D.C. Circuit in

United States v. Gurr, 471 F.3d 144, 147 (D.C. Cir. 2006), cert. denied, 550 U.S. 919

(2007), did not consider digital devices at all, but rather a search of “luggage.” The

Ninth Circuit would have decided Touset the same way, and there is no reason to

think the cell-phone-specific rule below would restrict border searches of physical

items like the luggage in Gurr.

4. The First Circuit’s recent decision in Alasaad does appear to diverge from

the Ninth Circuit’s decision in this case. Alasaad (now called Merchant in this

Court) is a civil case in which plaintiffs seek to enjoin the Government from

enforcing its policies governing searches of electronic devices at the border. The

plaintiffs allege that border agents have searched their electronic devices in the

past and that they fear such searches in the future. Alasaad v. Nielsen, 419 F.

Supp. 3d 142, 151-53 (D. Mass. 2019). They maintain, as relevant here, that the

Fourth Amendment requires a warrant, or at least reasonable suspicion of

contraband, to search digital devices at the border.1 The First Circuit rejected both

arguments.

The First Circuit also stated that it disagreed with the Ninth Circuit’s

holding in this case that border searches of digital devices must be limited in scope

to inspections for contraband. Alasaad, 988 F.3d at 20-21. Yet none of the plaintiffs

in that case was arrested or alleges a fear of being arrested at the border in the

future. The First Circuit thus had no occasion to determine whether the additional

fact of an arrest at the border would mean that a warrant (or at least individualized

suspicion of contraband) should be required before searching a cell phone. So it is

not certain whether the First Circuit’s facially categorical holdings would apply to

searches of cell phones seized incident to an arrest at the border. Conversely, it is

not clear the Ninth Circuit would apply the constitutional limitation it announced

here to a case, like Merchant, that did not involve an arrest. The Ninth Circuit

stressed, for example, that, “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.” Pet. App. 30a (emphasis added). Absent future decisions confronting those

questions on concrete facts, the extent of any disagreement between the courts

remains uncertain.

1 The Government challenged the plaintiffs’ standing in the district court, arguing

that their “risk of future injury is too speculative” to support their Fourth

Amendment claims. Alasaad, 419 F. Supp. 3d at 150. The district court rejected that

argument. Id. at 150-53. The Government did not renew the contention in the First

Circuit, and the First Circuit did not consider the issue for itself. 988 F.3d at 15 n.5.

II.

Further percolation is warranted.

Insofar as the First and Ninth Circuits truly disagree, this recent fissure

between two circuits does not call for this Court’s immediate review.

More time is necessary to understand the practical import of any

divergence between the Ninth and First Circuits.

It is too early to say whether the Ninth Circuit’s rule limiting border searches

of cell phones to inspections for digital contraband meaningfully limits the scope of

searches compared to the First Circuit’s view of the Fourth Amendment, or whether

it will produce the same search authority and results.

For one thing, the Government suggests that digital contraband may be “a

category limited almost exclusively to child pornography.” Pet. 26. But that is not

so. Contraband is typically defined to include any goods that are “unlawful to

import, export, produce, or possess.” Contraband, Black’s Law Dictionary (11th ed.

2019). Accordingly, as the Government has stated elsewhere, there appear to be

“many types of ‘digital contraband,’” including “classified information, stolen credit

card numbers, counterfeit media, and programs designed specifically to hack into

other computers.” See Def.’s Mem. Supp. Summ. J. at 13, Alasaad v. Duke, No. 1:17cv-11730 (D. Mass. June 6, 2019) (ECF No. 97). In fact, several courts have recently

confronted border-search cases involving these types of data and treated them as

digital contraband. See, e.g., United States v. Qin, 2020 WL 7024650, at *8 (D.

Mass. 2020) (recognizing “the export of technical data for controlled exports,”

including “proprietary data, trade secrets, schematics diagrams, [and] technical

know-how,” as “digital contraband”); Gowadia v. United States, 2015 WL 5838471,

at *5 (D. Haw. 2015) (indicating that e-mails containing NASA codes and B-2 and F5E bomber designs can violate the Arms Export Control Act).

More important, it remains to be seen which apps on a phone are subject to

searches for contraband. If the contraband rule allows limited searches of most or

all phone apps, the Ninth Circuit’s contraband limitation may have little import in

practice. The Ninth Circuit held below that officers may inspect text messages and

phone logs. Pet. App. 27a. Since this decision, at least one court within the Ninth

Circuit has deduced that the contraband rule allows agents to inspect photos stored

on electronic devices. See Adlerstein v. CBP, 2020 WL 5846600, at *3, *14 (D. Ariz.

2020). And once customs agents are legitimately inspecting any given app, the

Ninth Circuit seems to treat the plain-view doctrine as allowing the seizure of any

apparent evidence of criminality that they identify. See Pet. App. 27a (holding that

“[t]he observation that the phone contained no text messages falls comfortably

within the scope of a search for digital contraband”); see generally Coolidge v. New

Hampshire, 403 U.S. 443 (1971).

Lower courts have given little attention to various legal

considerations that are relevant to how the Fourth Amendment

applies to searches of cell phones at the border.

Cell phone searches at the border also implicate various legal issues that

have thus far received scant consideration in the lower courts, including: (1) the

effect of an arrest on the permissibility of searching phones without warrants,

(2) how positive law may inform the Fourth Amendment analysis, (3) whether the

expressive character of information on smart phones necessitates heightened

protection from searches, and (4) the effect of data retention on the reasonableness

of cell phone searches.

1. Some judges have called for a warrant requirement for at least some

searches of cell phones incident to arrest at the border. See, e.g., United States v.

Vergara, 884 F.3d 1309, 1315 (11th Cir. 2018) (Jill Pryor, J., dissenting); United

States v. Caballero, 178 F. Supp. 3d 1008, 1017-18 (S.D. Cal. 2016); United States v.

Molina-Isidoro, 267 F. Supp. 3d 900, 909-10 (W.D. Tex. 2016), aff’d, 884 F.3d 287

(5th Cir. 2018). The First Circuit in Alasaad, however, did not consider the

relevance of an arrest preceding a cell phone search at the border because none of

the plaintiffs in that case had been arrested. And the Ninth Circuit’s consideration

of whether a warrant is required when a person has been arrested was influenced

by its pre-Riley en banc decision in United States v. Cotterman, 709 F.3d 952 (9th

Cir. 2013) (en banc). Pet. App. 17a-19a. Here, the Ninth Circuit relied on the fact of

arrest in its discussion of forensic searches but set aside that fact when considering

the agents’ manual searches of Mr. Cano’s phone. See id. 27a-30a.

An arrest supports the need for a warrant to conduct any phone search at the

border. In Riley v. California, 573 U.S. 373, 386 (2014), the Court held that, absent

exigent circumstances, officers must “secure a warrant” before searching a phone

seized incident to arrest. Once an arrest has been made, the reasons for a

warrantless search no longer exist. “[D]ata on the phone can endanger no one,” and

there is “no longer any risk that the arrestee himself will be able to delete

incriminating data from the phone.” Id. at 387-88. Here too, once a person is

arrested and his phone has been seized, there is no risk that he will carry any

digital contraband across the border. In this situation, no justification remains for a

border search; all that remains is an “evidence-gathering” purpose to aid the

eventual prosecution. See United States v. Molina-Isidoro, 884 F.3d 287, 296 (5th.

Cir. 2018) (Costa, J., specially concurring). Just as in Riley, that purpose can be met

by getting a warrant and keeping the phone secure. Indeed, technological advances

continue to make getting a warrant “more efficient,” Riley, 573 U.S. at 401, with

some judges issuing them “in as little as five minutes,” Missouri v. McNeely, 569

U.S. 141, 173 (2013) (Roberts, C.J., concurring in part and dissenting in part).

This case illustrates these realities. Agents seized and secured Mr. Cano’s

phone over two hours before they initially searched it, and over three hours before

they searched it again. See supra at 3-4. And all of the pertinent information the

agents later found on the phone would have been available if they had waited to

obtain the warrant before conducting the searches. See Pet. App. 30a.

The Government protests that when agents arrest someone at the border,

they may conduct a warrantless search of a “written list of phone numbers” or other

tangible written or photographic papers. Pet. 16-17. But this sort of analogy to

information that might be found on a phone is exactly what this Court unanimously

rejected in Riley. Repudiating the Government’s contention that searching cell

phones is no different than searching physical objects or containers seized incident

to arrest, the Court explained that a physical search of papers or photos bears little

resemblance to a search of information on a cell phone. Riley, 573 U.S. at 400. The

rules that govern the former do not control the latter.

2. Nor have the lower courts considered how reference to positive law may

inform the constitutionality of the types of searches at issue here. In recent cases,

Members of this Court have suggested that Fourth Amendment analyses depend at

least in part on “positive law”—that is, statutes and other legal rules historically or

presently governing the type of search at issue. See Carpenter v. United States, 138

S. Ct. 2206, 2270, 2272 (2018) (Gorsuch, J., dissenting); Byrd v. United States, 138

S. Ct. 1518, 1531 (2018) (Thomas, J., concurring). The Fourth Amendment prohibits

“unreasonable” searches, and external legal norms can be a good barometer for

reasonableness. Indeed, some Justices have felt constrained in their ability to

resolve cases without sufficient development of such positive-law arguments. See

Carpenter, 138 S. Ct. at 2272 (Gorsuch, J., dissenting); Byrd, 138 S. Ct. at 1531

(Thomas, J. concurring).

A comprehensive assessment of positive law here could be illuminating, and

perhaps even decisive. Congress has been responsible for passing laws regulating

border searches since the Founding. See Carroll v. United States, 267 U.S. 132, 151152 (1925) (reciting history of laws authorizing customs agents to search for

contraband). And while Congress has yet to pass legislation specifying substantive

rules to govern border searches of electronic devices, there are several longstanding

statutes suggesting that a warrant or individualized suspicion of contraband is

necessary for such searches.

At least two statutes suggest that such searches are unreasonable without a

warrant. First, a customs statute dating to the Founding Era has always required a

warrant to search a person’s home for items subject to duty, or for evidence relating

to a border offense. See An Act to Regulate the Collection of the Duties Imposed by

Law on the Tonnage of Ships or Vessels, and on Goods, Wares and Merchandises

Imported into the United States, ch. 5, § 24, 1 Stat. 29, 43 (1789); 19 U.S.C.

§ 1595(a)(1). And in Riley, the Court explained that searching someone’s cell phone

is akin to searching the person’s home, as opposed to a container she is carrying.

“Indeed, a cell phone search would typically expose to the government far more than

the most exhaustive search of a house.” Riley, 573 U.S. at 396.

Second, customs agents cannot read correspondence contained in

international mail without written consent or a warrant. 19 U.S.C. § 1583(c)(2). In

fact, customs agents are not even allowed to open sealed mail that weighs sixteen

ounces or less. Id. § 1583(d). In United States v. Ramsey, 431 U.S. 606, 620 (1977),

the Court held that the same rules apply to international mail as to items people

carry physically across the border. So the restrictions on reading mail that is

crossing the border suggest that searches of expressive content on digital devices by

customs agents should also require a warrant.

At the very least, customs laws indicate that reasonable suspicion of

contraband should be required to search an electronic device at the border. To

search trunks or envelopes arriving on vessels at the border, customs officials must

have “reasonable cause to suspect there is merchandise which was imported

contrary to law.” 19 U.S.C. § 482(a). This Court has held that there is good reason

for protecting the digital contents of a cell phone at least as stringently as the

contents of an envelope or trunk. See generally Riley, 573 U.S. 373.

3. This Court has recognized that the Fourth Amendment imposes “special

constraints upon searches for and seizures of material arguably protected by the

First Amendment.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n.5 (1979); see

also Marcus v. Search Warrant, 367 U.S. 717, 731 (1961). And in Ramsey, this

Court reserved the question whether the border-search exception allows

government agents to read written correspondence. 431 U.S. at 623-24 & n.18.

Because federal regulations required agents to procure warrants before reading any

international correspondence, the Court had “no occasion to decide” whether “the

full panoply of Fourth Amendment requirements” should apply where warrantless

searches would have a propensity to “chill” speech. Id.

In the context of border searches of digital devices, this issue would be even

more serious than it would have been in Ramsey. Digital devices can hold

extraordinary amounts of expressive material—“millions of pages of text, thousands

of pictures, or hundreds of videos.” Riley, 573 U.S. at 394. Furthermore, digital

devices may have apps that convey or contain sensitive associational information,

such as political or religious affiliations or activities. See Carpenter, 138 S. Ct. at

2217; United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

No lower court since Riley has seriously considered these arguments. In

Alasaad, the First Circuit considered a facial First Amendment challenge to CBP’s

searches of electronic devices. But the First Circuit did not consider how the Fourth

Amendment should account for the expressive nature of the material stored on cell

phones. Allowing lower courts to grapple with this issue in the first instance would

ultimately aid this Court.

4. Finally, the lower courts have not fully considered how the Government’s

policy of retaining data from warrantless electronic border searches might affect the

reasonableness of such searches themselves. In Maryland v. King, 569 U.S. 435,

443-44 (2013), the Court upheld a state policy of taking DNA samples from

arrestees, noting that the state destroyed the samples if the charges were

unsupported by probable cause or if a criminal prosecution did not result in

conviction. The information found on cell phones is similarly highly sensitive. Yet it

appears the Government retains it even when no evidence of criminal activity is

found, sometimes for years on end. See, e.g., CBP, DIRECTIVE NO. 3340-049A,

BORDER SEARCH OF ELECTRONIC DEVICES § 5.5.1.2 (2018); ICE, DIRECTIVE NO. 7-6.1,

BORDER SEARCHES OF ELECTRONIC DEVICES § 8.5(1)(b) (2009); DHS, NO. PIA-053(a),

PRIVACY IMPACT ASSESSMENT FOR THE U.S. BORDER PATROL DIGITAL FORENSICS

PROGRAMS 8 (2020).

If, long after travelers have come and gone from the border, the Government

may still trawl through “a digital record of nearly every aspect of their lives,” Riley,

573 U.S. at 395, that may tip the balance in a reasonableness analysis. Seizing and

storing such information for future use makes the violation of the traveler’s privacy

especially severe. Years later, the Government might analyze the information with

tools or techniques that do not yet exist or use it for reasons having nothing to do

with enforcing border-related laws. See Jones, 565 U.S. at 415 (Sotomayor, J.,

concurring).

Completing the shift to cloud storage will alter the technological

landscape in relevant ways.

In addition to legal issues, evolving technological developments in cloud

storage counsel caution before the Court attempts to establish any constitutional

rules governing searches of digital devices at the border. As the Court previously

has observed, “[t]he judiciary risks error by elaborating too fully on the Fourth

Amendment implications of emerging technology before its role in society has

become clear.” City of Ontario v. Quon, 560 U.S. 746, 759 (2010); see also

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017). Such is the case here

with respect to cloud computing—that is, the ability to store data on a remote

server and retrieve it as necessary, rather than storing it on the device itself.

The issue of cloud storage complicates how—or even whether—the bordersearch exception applies to cell phones. The exception is rooted in the government’s

authority to stop and examine “persons and property crossing into this country.”

Ramsey, 431 U.S. at 616 (emphasis added). The border-search power, therefore,

extends only to people or things “enter[ing] into our country from outside.” Id. at

619. Cloud data, however, does not “enter” the country with the traveler at all. As

such, it must be off-limits during any border search. Searching “files stored in the

cloud” on a seized cell phone would be “like finding a key in a suspect’s pocket and

arguing that it allow[s] law enforcement to unlock and search a house.” Riley, 573

U.S. at 397.

As cloud technology develops and becomes more enmeshed in smartphone

interfaces, there will be a higher risk that border agents who search cell phones will

search cloud data. Such searches can occur inadvertently because information

stored in the cloud “may appear as a seamless part of the digital device when

presented at the border.” Cotterman, 709 F.3d at 965; see also Riley, 573 U.S. at

397-98. Indeed, while current CBP policies forbid agents from searching cloud data,

the agency has struggled in the past to implement such directives. See DHS, OFFICE

OF INSPECTOR GENERAL, OIG-19-10, CBP’S SEARCHES OF ELECTRONIC DEVICES AT

PORTS OF ENTRY 6 (2018). On the other hand, if border agents are able in the future

to avoid searching cloud information on phones, any border-search authority to

inspect data stored locally will become increasingly inconsequential, as less and less

data is actually stored “on” the phone. Either way, the Court should allow the

paradigm shift to cloud computing to come to fruition, and wait for border agencies

to respond to that reality, before establishing any new rules in this area. Otherwise,

the Court risks any new judicial pronouncements becoming quickly outdated.

Additional percolation would create breathing space for Congress.

Members of this Court have suggested in cases involving technological

change that “the best solution to privacy concerns may be legislative.” Jones, 565

U.S. at 429 (Alito, J., concurring, joined by Ginsburg, Breyer, and Kagan, JJ.); see

also Riley, 573 U.S. at 407-08 (Alito, J., concurring in part and concurring in the

judgment). That may well be the case here.

Congress’s power to regulate foreign commerce gives it an important role in

regulating “searches of persons or packages at the national borders.” United States

v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 125 (1973). Congress also has

exercised this power in response to the modern ubiquity of cell phones and

developments in data storage. The Trade Facilitation and Trade Enforcement Act of

2015 requires that CBP establish standard operating procedures for “searching,

reviewing, retaining, and sharing information” on electronic devices at ports of

entry. Pub. L. No. 144-125, 130 Stat. 122, 205. The statute further requires that

these procedures be updated every three years. Id. at 206. Congress also recently

enacted legislation dealing with personal privacy for data stored in the cloud and

the rules for the Government to obtain such data. See CLOUD Act, Pub. L. No. 115141, 132 Stat. 348, 1213-25 (2018).

Congress has also shown interest in passing new legislation that could

directly affect, or even moot, the specific question presented in this case. In 2019,

multiple bills were proposed that would significantly restrict searches and seizures

of electronic devices at the border, including by imposing a warrant requirement for

any search of the devices of a United States citizen or lawful permanent resident.

See S. 2694, 116th Cong. (2019); S. 1606/H.R. 2925, 116th Cong. (2019). While none

of these bills was enacted into law, there has been “an array” of bipartisan support

for such legislation. Examining Warrantless Smartphone Searches at the Border:

Hearing Before the Subcomm. on Fed. Spending Oversight & Emergency Mgmt. of

the S. Comm. on Homeland Sec. & Gov. Affairs, 115th Cong. 10 (2018).

III.

There is no immediate need to address how the border-search doctrine

applies to cell phones.

A. The Government can use other means to conduct investigations at the

border.

The Government claims that the decision below “disrupts the day-to-day

work of border officials.” Pet. 13. But that is not the case. The Ninth Circuit’s

contraband rule will often pose no obstacle to routine searches at the border, for

several reasons.

1. Individuals often consent to searches of their phones. Experts estimate

that ninety percent of all warrantless police searches are consent searches. Alafair

S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L.

Rev. 509, 511 (2015). People at the border may be more willing to consent to avoid

further inconvenience or delays to their travel. See, e.g., United States v. Vergara,

884 F.3d 1309, 1311 (11th Cir. 2018) (traveler acceded to search); United States v.

Ramirez, 2019 WL 3502913, at *18 (W.D. Tex. 2019) (same). And if an individual

consents to a search, the Ninth Circuit’s scope limitation is not implicated at all.

2. As noted above, the Government “does not construe the [Ninth Circuit’s]

decision to foreclose reliance on” national security grounds for border searches. Pet.

19 n.*. And CBP, the primary agency tasked with conducting searches at ports of

entry, explicitly recognizes national security concerns as an independent

justification for border searches. CBP, DIRECTIVE NO. 3340-049A, BORDER SEARCH

OF ELECTRONIC DEVICES § 5.1.4 (2018). The same is presumably true when other

sorts of exigent circumstances arise. See Missouri v. McNeely, 569 U.S. 141, 149

(2013).

3. In many instances, the Government can get—and is already getting—

warrants for digital searches at the border. Federal defender offices report that,

since 2018, border agents within the Ninth Circuit have been procuring warrants

before searching the phones of arrestees at ports of entry. And the Government has

not shown that the process of procuring a warrant has hampered its investigatory

activities at the border.

The Ninth Circuit’s contraband rule would not prevent the

Government from dealing with the hypothetical scenarios it raises.

The Government nonetheless raises two types of hypotheticals to suggest

that the search authority it seeks here is necessary. But both types underscore that

the Ninth Circuit’s digital contraband limitation poses little obstacle to the

Government’s ability to identify and investigate border-related crime.

In the first type, border agents have “already discovered drugs (or other

contraband)” but are in a race against the clock to accomplish “the rapid

interdiction of other drugs.” Pet. 21. But if such time-sensitive scenarios truly arise,

the exigency exception to the warrant requirement would presumably allow border

agents to conduct any necessary electronic device search.

In the second type, border agents have not yet found contraband, but an

electronic device search is purportedly necessary to learn that the device owner or

another traveler in close proximity is transporting drugs. Pet. 20. But the

Government overstates the importance in this scenario of conducting a warrantless

search of a cell phone. Border agents already employ tools—such as narcoticsdetecting dogs, Pet. 5, and compulsory x-rays or scans, see, e.g., United States v.

Molina-Isidoro, 884 F.3d 287, 289 (5th Cir. 2018)—that are much more likely than a

fishing expedition on a phone to detect the presence of physical contraband at the

border. Indeed, those methods enabled the discovery of the only contraband found in

this case.

Moreover, any need for border agents to rely on warrantless device searches

in these scenarios will soon disappear. A plan to digitally scan the physical contents

of all commercial and passenger vehicles crossing the border—not just those

referred to secondary inspection—has already been signed into law. See Securing

America’s Ports Act, Pub. L. No. 116-299, 134 Stat. 4906 (2021). Accordingly, border

authorities will scan every car in the “drug-smuggling convoy,” Pet. 20, for physical

contraband regardless.

In any event, if one day a case like the Government’s hypotheticals were to

arise—where the Government can claim that it was left with no means other than a

suspicionless device search at the border to identify an impending threat of

contraband—the Court can assess the issue then, with a concrete factual record

before it.

IV.

The Ninth Circuit correctly held that the Fourth Amendment was violated

here.

A. The Ninth Circuit’s scope holding is sound.

Notwithstanding certain broad language the Government quotes from past

opinions, the border-search exception (at least as applied to United States citizens

and lawful permanent residents) is properly limited to efforts to detect contraband.

1. The border-search exception is based on the need to enforce customs laws

and to prevent illegal importation of goods. See United States v. 12 200-Ft. Reels of

Super 8mm Film, 413 U.S. 123, 125-26 (1973). Colonial-era law that permitted

customs agents to search ships at the border focused on collecting duties and

driving revenue. See Laura K. Donohue, Customs, Immigration, and Rights:

Constitutional Limits on Electronic Border Searches, 128 Yale L.J.F. 961, 972-74

(2019). Such law during the Founding Era was also concerned with the enforcement

of duties. See United States v. Flores-Montano, 541 U.S. 149, 153 (2004). Indeed,

the exception has existed “since the beginning of our Government” to enable federal

officials “to regulate the collection of duties and to prevent the introduction of

contraband into this country.” Id. (quoting United States v. Montoya de Hernandez,

473 U.S. 537 (1985)); see also An Act to Provide More Effectually for the Collection

of the Duties Imposed by Law on Goods, Wares and Merchandise Imported into the

United States, and on the Tonnage of Ships or Vessels, ch. 35, §§ 48-51, 1 Stat. 145,

170 (1790).

The Government notes that the Court has also described the border-search

doctrine as partially grounded in protecting “territorial integrity.” Pet. 18 (quoting

Flores-Montano, 541 U.S. at 153). And the Government quotes the Court’s decadesold statement that border searches “have been considered to be ‘reasonable’ by the

single fact that the person or item” was crossing our border. Pet. 18 (quoting

Ramsey, 431 U.S. at 619). But that language does not explain the Court’s

suggestion in Montoya de Hernandez that at least some highly intrusive border

searches may require warrants or reasonable suspicion of contraband. See 473 U.S.

at 541 n.4. And the fact remains that the Court has never upheld a border search

for anything other than contraband. Pet. App. 24a-25a.

In light of this history and precedent, the Ninth Circuit correctly held that

border searches must be limited in scope to inspections for contraband. A search

like the one here that continues even after it is clear a seized item does not contain

contraband is not a valid border search.

2. Contrary to the Government’s contention, the Ninth Circuit’s holding here

is fully consistent with Warden v. Hayden, 387 U.S. 294 (1967).

Hayden held that when police officers are conducting an “otherwise

permissible” search of a place, they may seize “mere evidence” of criminality that

they come upon. 387 U.S. at 301, 306. In so holding, the Court backed away from its

prior suggestion in Boyd v. United States, 116 U.S. 616 (1886), and other cases that

private papers could never be inspected or seized merely for evidentiary purposes.

The Ninth Circuit held here that a border search is not valid in the first place

when contraband could not be found in the place being searched. This holding does

not resurrect any portion of Boyd that is no longer good law. The Ninth Circuit

merely applied the time-honored rule that a warrantless 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) (internal quotation marks and citation omitted)

(frisk for weapons); see also Riley v. California, 573 U.S. 373, 382 (2014) (search of a

phone incident to arrest); Arizona v. Gant, 556 U.S. 332, 343 (2009) (search of a car

incident to arrest); Maryland v. Buie, 494 U.S. 325, 335 (1990) (a “protective sweep”

of a home is “not a full search of the premises, but may extend only to a cursory

inspection of those spaces where a person may be found”). As explained above,

warrantless border searches are permissible only to prevent contraband from

crossing into the country.

The Government also cites Hayden for the proposition that any distinction

between “mere evidence” and “instrumentalities, fruits of crime, or contraband” is

arbitrary and difficult to administer. Pet. 21-22 (quoting Hayden, 387 U.S. at 301).

But that is clearly untrue at the border. Federal customs statutes have long limited

which agents may search for which items in precisely this way. For example, a

customs agent stopping and boarding a vessel may “search any trunk or envelope,

wherever found” only when “he may have a reasonable cause to suspect there is

merchandise which was imported contrary to law.” 19 U.S.C. § 482.

The Fourth Amendment was violated here for other reasons as well.

Finally, a respondent is entitled to defend the judgment below on alternative

legal grounds—especially where, as here, the court of appeals considered those

arguments. See, e.g., Bennett v. Spear, 520 U.S. 154, 166-67 (1997). Here, there are

two additional reasons besides the Ninth Circuit’s scope holding why the searches of

Mr. Cano’s phone violated the Fourth Amendment.

1. A warrant should be required to search a digital device at the border—at

least where, as here, federal agents have arrested the phone’s owner and are

searching for evidence of the crime of arrest. Under Riley, the Court must balance

the need to search an electronic device seized incident to arrest against the privacy

implications of doing so without a warrant. 573 U.S. at 385-86. As the Ninth Circuit

recognized, once an individual is arrested and his cell phone has been seized, there

is no need to search the phone without procuring a warrant. Pet. App. 30a. And

Riley establishes that the impingement on privacy of even a manual search of a cell

phone is severe. See 573 U.S. at 394. Consequently, the balance here—just as in

Riley—dictates the need for a warrant.

What is more, positive law dating back to the Founding has always required

warrants to search homes as part of investigations of border-related crimes. See

supra at 17-18. And as this Court recognized in Riley, searching a person’s phone is

properly analogized to the search of a home, not the search of a container the person

is carrying. 573 U.S. at 396-97. Lest there be any doubt, the expressive nature of

the material at issue and the Government’s retention policies reinforce the need for

warrants in this situation. See supra at 19-20.2

2. At a minimum, any search of a cell phone—manual or forensic—is so

intrusive as to require reasonable suspicion of digital contraband. In Montoya de

Hernandez, the Court held that reasonable suspicion that a traveler is “smuggling

contraband” in her alimentary canal is required to seize her and monitor her bowel

movements. 473 U.S. at 541. The Court has twice reserved the related question

whether certain border searches are so “highly intrusive” that they are subject to a

requirement of “reasonable suspicion, probable cause, or a warrant.” Flores-

Montano, 541 U.S. at 152 (quoting Montoya de Hernandez, 473 U.S. at 541 n.4).

The Ninth Circuit extrapolated from this precedent that because a forensic

search of a cell phone is “highly intrusive,” it requires reasonable suspicion of

2 A warrant is even more necessary for a search of messages arriving on the phone

after it was seized. Here, at least one WhatsApp message introduced at trial was

received hours after the customs agents seized Mr. Cano’s phone at the border. Pet.

App. 5a; C.A. E.R. 1064. The fact that this message did not exist when Mr. Cano

presented himself at the border means that reading the message cannot be justified

under the border-search exception to the warrant requirement.

contraband. Pet. App. 29a. For the reasons the Court recognized in Riley, the same

should be true of manual searches of cell phones. See Riley, 573 U.S. at 394-96; see

also United States v. Kolsuz, 890 F.3d 133, 145-46 (4th Cir. 2018). Indeed, in the

proceedings below, the Government contended that even a search using Cellebrite

software is a manual search. Pet. App. 30a n.12. If, as the Government suggests, a

search as intrusive as the Cellebrite search performed here is “manual,” it is all the

more apparent that at least reasonable suspicion of contraband must be required for

all cell phone searches.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be denied.

Respectfully submitted,