673 F.Supp.3d 381
S.D.N.Y.2023Background
- On March 2, 2021, CBP agents at Newark seized Jatiek Smith’s phone when he returned from Jamaica, obtained his passcode, and created a forensic copy without a warrant; the original phone was returned.
- HSI and FBI agents (investigating alleged racketeering/extortion in the EMS industry) reviewed the copied data; 38 days later the Government obtained a magistrate’s warrant to search the forensic copy.
- Months later the Government obtained a Title III wiretap for Smith’s (and co-defendant Jackson’s) phones, relying in part on information derived from the phone search.
- Smith moved to suppress the phone search results and the wiretap evidence as fruits of an unlawful border search; he also moved to dismiss the indictment for selective prosecution.
- The Court held the warrantless copy/search at the border violated the Fourth Amendment (applying Riley’s reasoning to border searches) but denied suppression under the good-faith exception (agents reasonably relied on CBP guidance and a subsequently issued warrant); other motions (wiretap suppression, selective-prosecution dismissal, severance) were denied.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| 1. Was the warrantless seizure/copy and search of Smith’s phone at the border lawful? | Border-search exception permits warrantless searches at entry; CBP policy allowed manual/forensic searches with reasonable suspicion. | Smith: Riley logic applies; phone data is qualitatively different and a warrant was required. | Court: Warrantless copying/search was unlawful; Riley balancing prevents extending border-search exception to full phone searches absent exigency. |
| 2. Should evidence from the unlawful search be suppressed? | Independent-source, inevitable-discovery, or good-faith doctrines salvage the evidence; magistrate later issued a warrant and agents reasonably relied on guidance/case law. | Smith: Warrant was tainted by fruits of the illegal search; copy existed only because of the unlawful seizure, so exceptions don’t apply. | Court: Independent-source and inevitable-discovery fail; good-faith exception applies (both reliance on CBP directive/relevant precedent and on the later magistrate-issued warrant). |
| 3. Motion to dismiss indictment for discriminatory prosecution (selective prosecution) | Gov't: prosecutorial decisions presume regularity; no clear evidence of race-based discrimination. | Smith: prosecution targets mostly Black/Brown defendants; white EMS actors similarly situated were not prosecuted. | Court: Dismissal denied — Smith failed to show similarly situated individuals of different race were treated differently or any discriminatory purpose. |
| 4. Jackson’s challenge to Title III wiretap (necessity/alternatives) | Wiretap affidavit explained why other investigative means had failed or were unlikely to succeed; complex conspiracy justified interception. | Jackson: Government didn’t exhaust/adequately attempt less-intrusive means; phone messaging used WhatsApp encryption. | Court: Wiretap affidavits satisfied statutory necessity and explained limitations of other methods; suppression denied. |
| 5. Motion to sever co-defendants Dore and Lacewell | Gov't: evidence substantially overlaps; any contested statements can be addressed by limiting instructions or in limine rulings. | Dore/Lacewell: Prejudicial statements by Smith and differential culpability require severance. | Court: Severance denied — no substantial prejudice shown and limiting measures adequate. |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (modern cell phones hold qualitatively and quantitatively different private data; warrant generally required for searches)
- United States v. Ramsey, 431 U.S. 606 (1977) (border-search exception grounded in sovereign right to inspect entrants and effects)
- United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (border searches judged by a different reasonableness balance; some detentions require reasonable suspicion)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith reliance on a magistrate-issued warrant may preclude suppression)
- Davis v. United States, 564 U.S. 229 (2011) (limits on exclusionary rule; good-faith exception and deterrence analysis)
- United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) (post-illicit-search warrant reliance on a magistrate’s determination can support good-faith application)
- United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (treatment of forensic copies and later searches; good-faith principles discussed)
- United States v. Cano, 934 F.3d 1002 (9th Cir. 2019) (warrantless border phone searches permissible only to detect digital contraband; searches for evidence require a warrant)
- United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018) (border phone searches require a nexus to border-protection interests)
- United States v. Levy, 803 F.3d 120 (2d Cir. 2015) (CBP may search traveler’s documents based on reasonable suspicion of criminal activity, even if outside CBP’s primary mission)