United States v. Hernando Javier Vergara
884 F.3d 1309
11th Cir.2018Background
- Vergara returned to Tampa from Cozumel carrying three cell phones; CBP inspected his luggage during secondary screening based on a lookout list.
- An officer manually viewed a Samsung phone at the port and saw a short video of topless females he believed to be minors, then summoned DHS investigators.
- Agents seized all three phones and performed forensic extractions on two phones the same day; those forensic exams produced over 100 images/videos constituting child pornography.
- No evidence from the initial manual viewing was used at trial; the convictions rested on material recovered in the forensic searches.
- Vergara moved to suppress the forensic evidence; the district court denied suppression, found him guilty at a bench trial, and sentenced him to concurrent 96‑month terms.
- The Eleventh Circuit majority affirmed, holding border forensic searches do not require a warrant or probable cause, and Riley v. California does not control border searches; a dissent argued Riley’s privacy reasoning compels a warrant requirement for forensic border searches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Riley v. California requires a warrant for forensic cell‑phone searches at the border | Riley’s reasoning about heightened privacy interests in cell‑phone data means forensic border searches require a warrant and probable cause | Border searches are categorically exception to warrant and probable‑cause requirements; Riley addressed search‑incident‑to‑arrest, not border searches | Majority: Riley does not displace border‑search doctrine; forensic border searches need no warrant or probable cause (reasonable‑suspicion issue not raised) |
| Whether a forensic search at the border requires reasonable suspicion | (Implicit) Forensic searches implicate greater privacy and may require probable cause | Border searches generally never require probable cause; only highly intrusive body searches require reasonable suspicion | Court: Border searches are governed by longstanding exception; reasonable suspicion is required only for highly intrusive body searches—Vergara did not contest reasonable suspicion for the forensic search |
Key Cases Cited
- Riley v. California, 134 S. Ct. 2473 (2014) (cell‑phone searches incident to arrest generally require a warrant due to substantial privacy interests)
- United States v. Ramsey, 431 U.S. 606 (1977) (border searches reasonable without probable cause or a warrant)
- United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (nonroutine or prolonged border detentions may require suspicion)
- United States v. Flores‑Montano, 541 U.S. 149 (2004) (vehicle disassembly at the border permissible without suspicion)
- United States v. Vega‑Barvo, 729 F.2d 1341 (11th Cir. 1984) (border searches not subject to probable‑cause or warrant requirements)
- United States v. Alfaro‑Moncada, 607 F.3d 720 (11th Cir. 2010) (highly intrusive body searches at the border require reasonable suspicion)
- United States v. Villabona‑Garnica, 63 F.3d 1051 (11th Cir. 1995) (border searches governed by Fourth Amendment reasonableness standard)
- United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (forensic laptop search at the border required reasonable suspicion)