Ruling is a sharp departure from the border search exception

A surprise decision came from the 9th U.S. Circuit Court of Appeals last week in which the court denied a petition by the government-appellee for an en banc rehearing. See United States v. Cano, 2020 DJDAR 9667 (Sept. 2, 2020). The court had been asked to review a panel decision that completely altered the interpretation of the border search exception to the 4th Amendment prohibition on unreasonable searches and seizures, and deviated from a long line of U.S. Supreme Court and circuit court cases. A strongly worded dissental followed.

Background

In 2016, Miguel Cano attempted to enter the U.S. by car at the border crossing in San Ysidro port of entry from Tijuana, Mexico. A drug-detection dog drew attention of Customs and Border Protection officers to Cano's vehicle's spare tire. A search discovered 31 pounds of cocaine hidden in the spare tire. Cano was arrested and questioned. CBP officers believed that searching Cano's cellphone would reveal additional criminal activities or evidence. Relying on well-established court decisions, CBP training, and reasonableness of their actions, CBP officers searched Cano's phone without a warrant under the border search exception doctrine. Two more messages came to Cano's phone subsequent to his arrest. CBP officers made images of the phones and the messages. Cano's defense rested in part on his ignorance of the existence of the drug and claimed that his cousin placed the drug in the car without his knowledge.

The district court found that the search rose not from only reasonable suspicion, but the search was justified by probable cause. The 9th Circuit reversed, holding that for the border search exception to apply, searches had to be limited in purpose and scope. The search of Cano's cellphone would be appropriate only if it could have contained "contraband." In the case of a cellphone, the only contraband it would usually contain is child pornography. As Cano was arrested for drug smuggling, the search of his cellphone was unreasonable because CBP officers had no reason to suspect that Cano's cellphone would have contained any "contraband" or child pornography.

The matter failed to receive a majority of votes upon a request for en banc review, though it did draw a strong dissental.

A Scalding Dissental

Did the court's decision fly in the face of well-established legal doctrines and case law? The sharp dissental penned by Judge Mark Bennett, joined by five other judges, clearly thought so. Judge Bennet's dissent contained the following main points:

1. The border search exception is "as old as the Fourth Amendment itself" and "is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country", quoting United States v. Ramsey, 431 U.S. 606, 619, 620 (1977). As the search took place at the border, the border search exception applied.

2. The decision violated the 9th Circuit's own decision in United States v. Cotterman, 709 F.3d 952, 970 (9th Cir. 2013). Cotterman required CBP officials to have a "reasonable suspicion to forensically search electronic devices." Id. The court imposed this modest requirement because it recognized the sensitive and personal data that is stored in one's electronic device. Cotterman never limited the reasonableness of a search to only the existence of "contrabands" on electronic devices. Cotterman was clear that the search would be reasonable if border agent had reason to suspect that criminal activities may be present. Never did Cotterman mention "contraband" in its opinion.

3. The reasoning of the Cano decision had already been rejected by the 4th and 10th Circuits. The 4th Circuit's decision in United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018) rejected Kolsuz's argument that a search of his cellphone was unreasonable. The court stated: "the 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 prevention and disruption of ongoing efforts to export contraband illegally, through searched initiated at the border." Id. at 143-44. The 10th Circuit strengthened the dissent's argument in United States v. Williams, 942 F3d 1191 (10th Cir. 2019). A search of Williams' laptop using software bypassing his passwords revealed child pornography, even though he was stopped initially not because of suspicion of having child pornography. He was stopped because of his criminal history, untruthful answers about his travel history, and recent travel to Paris, where a terrorist attack had occurred, and trips to three countries that were linked to the attack. The court concluded that "the Fourth Amendment does not require law enforcement officers to close their eyes to suspicious circumstances." Id. at 1191.

4. In all border search cases, only one case had placed some kind of limitation. However, the limitation served only to raise the level of suspicion required for the search, not limiting the scope of the search. United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004). Judge Bennet cautioned that the Supreme Court had already reversed the 9th Circuit twice for placing greater limitation on the border search exception. Id.; United States v. Montoya de Hernandez, 473 U.S. 531, 540-41 (1985). Limiting the search on electronic devices to only the search for "contraband," such as child pornography, was not based in law.

5. The court erred and should have found the search on Cano's phone covered by the good faith exception, relying on law that has been well-established. United States v. Davis, 564 U.S. 229, 241 (2011); United States v. Lustig, 830 F.3d 1075, 1081 (9th Cir. 2016); United States v. Katzin, 765 F.3d 163, 176 (3rd Cir. 2014); United States v. Robinson, 414 U.S. 218 (1973).

Perhaps, the following sums up the dissent: "It is the decision -- and not the search of Cano's phone -- that is unreasonable."

Effects of the Cano Decision

The effects of Cano cannot be overstated. Border officials in the 9th Circuit must now obtain a warrant prior to conducting a border search on a traveler's electronic device unless the border officers reasonably suspected that the device contains "contraband," such as child pornography. The facts of the Cano case were unambiguous. Whether Cano was truly guilty of smuggling cocaine into the United States or whether his cousin placed the drug in his spare tire without his knowledge, the case presented a clear set of facts. Cano was caught with 31 pounds of cocaine hidden in his spare tire. He was questioned and the officers found a cell phone on him. In light of this clear criminal activity afoot, it would be reasonable for CBP officers to search Cano's phone to discover if he had any accomplices, the location of the drop, or other information which could lead to the arrest of additional criminals.

The 9th Circuit's decision strains to make any legal sense whatsoever, especially given the overwhelming and unequivocal long line of precedent decisions. The Cano decision was also void of logic. The decision essentially limits the search of one's cellphone at the border only if the cellphone was reasonably believed to contain contraband, which is mainly interpreted as child pornography. There is no doubt that the border search exception as applied to electronic devices was not created only to stem out child pornography, as important as it is. The Supreme Court's precedent decisions were clear and required no subtle interpretation. The facts of the Cano case supporting the straight-forward application of the precedent decisions could not be stronger either.

The 9th Circuit has now tied the hands of CBP officers. Because of the tight restriction on searching cellphones in border searches, many criminals and criminal activities will enter the U.S. The Cano case was a poorly reasoned decision and based on past precedent; the Supreme Court will surely reverse. 