Conservatives object to ruling vacating conviction due to warrantless phone search

The 9th U.S. Circuit Court of Appeals affirmed a panel decision vacating a defendant's conviction for importing cocaine from Mexico because Customs and Border Protection officers searched his cell phone without a warrant, but six conservatives on the court dissented because they said the majority incorrectly applied the exception for searches at the border.

Judge Mark J. Bennett, an appointee of President Donald Trump, wrote the court should have reheard the decision en banc, saying a three-judge panel's ruling last year reversing a San Diego district judge's motion to suppress was incorrect and that its view had been rejected by the 4th and 10th U.S. Circuit Courts of Appeals. Five other judges appointed by GOP presidents joined the dissent.

"The panel's decision contradicts the history of the border search exception and the Supreme Court's teachings as to the almost plenary nature of the sovereign's authority at the border," Bennett wrote, adding the ruling is "untethered from any Fourth Amendment reasonableness calculus." U.S. v. Cano, 2020 DJDAR 9667 (9th Cir., filed April 28, 2017).

The dissent, which is critical of 9th Circuit rulings and cites a circuit split, appears to be an invitation for the government to appeal the decision to the U.S. Supreme Court.

The U.S. Department of Justice did not return an email seeking comment. Mark R. Rehe of the U.S. attorney's office in San Diego who argued the case declined comment.

Miguel Cano was arrested for carrying cocaine as he attempted to cross the border from Mexico to the United States at the San Ysidro Port of Entry in 2016. Border patrol officers 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.

Applying a 2013 decision by the 9th Circuit, Judge Jay S. Bybee -- an appointee of President George W. Bush -- ruled the officers could conduct manual searches of Cano's phone but that forensic searches of the phone require reasonable suspicion.

"In this case, the officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search," Bybee wrote. "Accordingly, we hold that most of the evidence from the searches of Cano's cell phone should have been suppressed."

During oral arguments in the case last year, Bybee and other judges on the panel were dubious about the right of authorities to comb through people's phones and computers and read their text messages without a warrant. "It's pretty far afield from the border search exception," 9th Circuit Judge Susan P. Graber, an appointee of President Bill Clinton, told Rehe.

Bybee questioned how long it would have taken to get a warrant, a question Rehe said he didn't know.

But Rehe argued that the fact the arrest took place at the border was relevant, noting the search of Cano's cell phone led to his admission he had deleted all of his text messages and criticizing the argument of Cano's federal public defender, Harini P. Raghupathi, that the only warrantless search permitted is for child pornography. "There should be some allowance for security," he said.

Raghupathi cited a 2014 U.S. Supreme Court opinion -- Riley v. California, 573 U.S. 373, 393 (2014) -- to support her argument the warrantless search and seizure of the contents of a cell phone is unconstitutional.

Bennett, however, focused on the exception for searches at the border, saying the limitations on searches for digital contraband does not make sense.

"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," among other crimes, he said.