UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HERNANDO JAVIER VERGARA, Defendant-Appellant.
No. 16-15059
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
March 15, 2018
884 F.3d 1309
[PUBLISH] D.C. Docket No. 8:16-cr-00021-JDW-MAP-1. Appeal from the United States District Court for the Middle District of Florida. Before WILLIAM PRYOR, JILL PRYOR and CLEVENGER, Circuit Judges.
I. BACKGROUND
Vergara returned to Tampa, Florida on a cruise ship from Cozumel, Mexico, with three phones: a Samsung phone inside a bag in his luggage, an LG phone, and an iPhone. Christopher Ragan, an officer with Customs and Border Protection, identified Vergara and searched his luggage. When Ragan found the Samsung phone in Vergara‘s luggage, he asked Vergara to turn the phone on and then looked through the phone for about five minutes. During this search, Ragan found
After viewing the video and interviewing Vergara, Terri Botterbusch, a special agent with the Department of Homeland Security, decided to have all three phones forensically examined. Agents later returned the iPhone to Vergara‘s niece after a forensic examination revealed that it did not contain any child pornography.
A forensic examination of the Samsung and LG phones conducted that day revealed more than 100 images and videos, “the production оf which involved the use of a minor engaging in sexually explicit conduct and the visual depictions were of such conduct.” Neither the earlier manual search nor the forensic examinations damaged the phones. A grand jury later indicted Vergara on two counts: (1) that he “did knowingly transport in and affecting interstate and foreign commerce one or more visual depictions, the production of which involved the use of a minor engaging in sexually explicit conduct and such visual depictions were of such conduct“; and (2) that he “did knowingly possess numerous matters that had been shipped and transported using any means and facility of interstate and foreign commerce, including by computer, which matters contained visual depictions of minors engaging in sexually explicit conduct and the production of which involved the use of minors engaging in sexually explicit conduct.” See
At a later bench trial, the district court found Vergara guilty of both counts and later sentenced him to ninety-six months imprisonment on each count concurrently followed by supervision for life.
II. STANDARD OF REVIEW
“With regard to [a] motion to suppress, we review the district court‘s factual findings for clear error and its legal conclusions de novo.” United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007).
III. DISCUSSION
The
Vergara argues that Riley required a warrant for both the manual and the forensic searches of his phones, but he challenges only the forensic searches because no evidence from the manual search was admitted as evidence against him. In Riley, the Supreme Court addressed the constitutionality of warrantless manual searches of cell phones following the arrest of two defendants in the United States. 134 S. Ct. at 2480-82. And the Supreme Court expressly limited its holding to the search-incident-to-arrest exception. It explained that “even though [that]
Border searches have long been excepted from warrant and probable cause requirements, and the holding of Riley does not change this rule. Vergara points to language from Riley about the “consequences for privacy” involved in a search of a cell phone. Id. at 2489. But this language does not help him. At the border, the highest standard for a search is reasonable suspicion, see Vega-Barvo, 729 F.2d at 1344-45, and Vergara has not challenged the finding of the district court that reasonable suspicion existed for the searches of his phones. So we need not—and do not—address the questions whether reasonable suspicion was required for the searches or whether reasonable suspicion existed.
IV. CONCLUSION
We AFFIRM Vergara‘s judgment of conviction and sentence.
In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment. To determine whether a law enforcement practice is constitutiоnal, courts must balance its promotion of legitimate government interests against its intrusion on an individual‘s Fourth Amendment rights. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Here, we weigh the government‘s interest in conducting warrantless forensic cell phone searches at the border with Hernando Vergara‘s privacy interest in his cellular devices and the data they contain.
The majority opinion concludes that this balance weighs heavily in the government‘s favor because the searches occurred at the border. I agree with the majority that the government‘s interest in protecting the nation is at its peak at the border, but I disagree with the majority‘s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government‘s heightened interest at the border with Vergara‘s privacy interest in his cell phones leads me to a result different than the majority‘s. I respectfully dissent because, in
I. BACKGROUND
Vergara, a United States citizen, arrived at the Port of Tampa, Florida, having returned from a vacation in Cozumel, Mexico. Before his return, U.S. Customs and Border Protection (“CBP“) had identified Vergara based on his prior conviction for possession of child pornography, placing him on a list of the day‘s “lookouts.” Individuals on the list are subjected to secondary screening at the border, which involves additional questioning and searching.
When Vergara arrived at the port, CBP Agent Christopher Ragan escorted him to the secondаry inspection area. In Vergara‘s luggage, Ragan found two cell phones, a Samsung phone and an iPhone. Vergara also had a third cell phone on his person. Ragan took the Samsung phone and began looking through the photos on it, as well as “a couple apps,” finding nothing of interest. Doc. 63 at 12.1 Ragan then began viewing videos, one of which depicted topless females he believed were minors. Ragan contacted Special Agent Terri Botterbusch, a criminal investigator with the Department of Homeland Security. When Botterbusch arrived, she sрent a few seconds viewing the video, observing underage, topless females and the logo of a website that she knew distributed child
The agents “[did not] have the capability to forensic[ally] analyze the phone at the port of entry.” Doc. 63 at 23. Botterbusch therefore seized Vergara‘s cell phones and took them to her office so “forensic agents” could conduct а full forensic examination. Id. at 31. The record does not detail the mechanics of the forensic examination, but Botterbusch testified that it involved the “extraction of data” from the cell phones and that she believed it had been completed “that afternoon.” Id. at 39. The forensic search ultimately revealed more than 100 images and videos of child pornography and erotica stored on Vergara‘s phones.
Based on evidence procured from the forensic search, Vergara was arrested and charged with knowingly transporting child pornоgraphy, in violation of
The
Congress has granted the Executive Branch the “plenary authority to conduct routine searches . . . at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.” Montoya de Hernandez, 473 U.S. at 537. This exception to the warrant requirement “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.” United States v. Ramsey, 431
Given the government‘s heightened interest, the Supreme Court has held, for example, that at the border mail may be opened without a warrant, vehicles may be stopped without individualized suspicion, and boats may be boarded “with no suspicion whatever.” Montoya de Hernandez, 473 U.S. at 538; see also Flores-Montano, 541 U.S. at 155 (holding that at the border a vehicle‘s gas tank may be disassembled and searched without any suspicion). Consistently with the Supreme Court‘s cases involving routine border searches, we have held that living quarters on a ship may be searched at the border absent аny suspicion. United States v. Alfaro-Moncada, 607 F.3d 720, 732 (11th Cir. 2010). Such searches “are reasonable simply by virtue of the fact that they occur at the border.” Flores-Montano, 541 U.S. at 152-53 (internal quotation marks omitted).
But the government‘s authority at the border is not without limits. In Montoya de Hernandez, for example, the Supreme Court held that the prolonged detention of a woman who was suspected of smuggling narcotics within her alimentary canal was “beyond the scope of a routine customs search” and thus required some level of suspicion. Montoya de Hernandez, 473 U.S. at 541. Although the Court expressed “no view” on the level of suspicion required for
Neither the Supreme Court nor any federal circuit court has determined the level of suspicion required to justify the forensic search of a cell phone at the border.2 But in Riley, the Supreme Court suggested an answer by holding that probable cause and a warrant are required to manually search a cell phone following a lawful arrest. 134 S. Ct. at 2485. The Supreme Court described in Riley the significant privacy interests that individuals hold in the contents of their cell phones. And, as I will explain, the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley. In view of those interests, I would hold that a forensic search of a cell phone at the border requires a warrant supported by probable cause.3
As the Supreme Court made clear in Riley, cell phones are fundamentally different from any object traditionally subject to government search at the border.
Before cell phones, border searches were limited by “physical realities” that ensured any search would impose a relatively narrоw intrusion on privacy. See id. Individuals could not carry across the border all the mail they had received, pictures they had taken, and books they had read. See id. When it comes to cell phone searches, though, these “physical realities” no longer exist. Id. And, as the Court predicted in Riley, the “gulf between physical practicability and digital capacity will only continue to widen.” Id.4
Beyond these quantitative differences, the data cell phones contain is “also qualitatively different” from the information gleaned by searching luggage, living
The Supreme Court recognized in Riley that given the vast amounts of personal information contained on a cell phone, a cell phone search “typically expose[s] to the government far more than the most exhaustive search of a house,” which has historically received the Fourth Amendment‘s most stringent protections. Id. at 2491. Indeed, a cell phone “not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” Id.
Although the government‘s interest at the border is undoubtedly greater than it was in searching the arrestees in Riley, Vergara‘s privacy interests are greater here, too. In Riley, the officers searched the arrestees’ cell phones by viewing videos, reading text messages, and scrolling call logs. Here, Vergara‘s сell phones were forensically searched. Although the record does not reveal what that
Of course, the border search exception to the warrant requirement “rests not only on the heightened government interests . . . but also on [travelers‘] reduced privacy interests” at the border. Riley, 134 S. Ct. at 2488; see Montoya de Hernandez, 473 U.S. at 539 (“[T]he expectation of privacy is less at the border than in the interior.“). But a “diminished privacy interest[] doеs not mean that the Fourth Amendment falls out of the picture entirely.” Riley, 134 S. Ct. at 2488. Instead, when the “privacy-related concerns are weighty enough,” as they are in a forensic search of a cell phone, the search may require a warrant, “notwithstanding the diminished expectations of privacy.” Id. (internal quotation marks omitted).
To be surе, forensically searching a cell phone may lead to the discovery of physical contraband. A drug smuggler‘s deleted text messages, for example, may reveal the location of drugs inside the border. But this general law enforcement justification is quite far removed from the purpose originally underlying the border search exception: “protecting this Nation from entrants who may bring anything harmful into this country.” Id. Excepting forensic cell phone searches from the warrant requirement because those searches may produce evidence helpful in
The government argues that requiring probable cause and a warrant before conducting a forensic search would allow “terrorists, spies, [and] smugglers” to cross the border knowing their “devices will be immune from random, unpredictable, and suspicionless searches.” Appellee‘s Br. at 26. Certainly, cell phones may contain information about past, present, and future criminal activity. But obtaining a warrant before extracting data from a cell phone is “not merely an inconvenience to be . . . weighed against thе claims of police efficiency“; instead, it is a process essential to the “machinery of our government.” Riley, 134 S. Ct. at 2493 (internal quotation marks omitted). The warrant requirement prevents the government from boundlessly intruding on individuals’ privacy “on the mere chance that desired evidence might be obtained.” Montoya de Hernandez, 473 U.S. at 540 n.3 (internal quotation marks omitted). And—critically—in the proper circumstances, border officers may still rely on the exigent circumstances exception to conduct a warrantless forensic search. See Riley, 134 S. Ct. at 2494.
Relative to the importance of the warrant requiremеnt in protecting individual privacy in the type of information a forensic search can reveal—the government‘s burden in seeking a warrant is minimal. Indeed, the same technological advances that have enabled “smart” cellular devices have made the
Forensic searches are themselves an involved process, making the added burden on the government of seeking a warrant slight. In general, forensic examinations require “analysts [to] sift through the mountain of data in a hard drive and locate specific types or pieces of data.” Kerr, Searches and Seizures in a Digital World, supra page 9, at 538. This process involves “a range of software programs to aid the search, [and] can take many days or even weeks to complete.” Id. In this case, Agent Botterbusch had to transport Vergara‘s phones to her office where special forensic agents had to conduct thе forensic search. Requiring border officers to seek a warrant before beginning a forensic search, then, would add relatively little time to an already time-intensive process.
I disagree with the majority that Riley is irrelevant to the forensic searches of Vergara‘s cell phones because the Supreme Court “expressly limited its holding to the search-incident-to-arrest exception.” Maj. Op. at 7. The majority relies on the Supreme Court‘s statement that “other case-specific exceptions may still justify a warrantless search of a particular phone.” Riley, 134 S. Ct. at 2494. But that
I acknowledge, of course, that because Riley concerned a distinct exception to the warrant requirement, it does nоt compel the outcome I advocate here. The Supreme Court clarified that it was not holding “that the information on a cell phone is immune from search.” Id. at 2493. But unlike the majority, I do not read Riley so narrowly as to prevent its application to cell phone searches in other contexts, including at the border. As the Court went on to explain in Riley, “[its holding was] instead that a warrant is generally required before [a cell phone] search, even when a cell phone is seized incident to arrest.” Id. (emphasis added). I believe we must look to Riley to inform our analysis of Vergara‘s privacy interest in his cell phones—the very same interests hеld by the arrestees in Riley—to determine whether a warrant is required for a forensic cell phone search even when the search occurs at the border. Due to the extreme intrusion into privacy posed by a forensic cell phone search—well beyond the intrusion posed by a manual
I note finally that, as the first federal circuit court to determine whether a warrant is required to conduct a forensic search of a cell phone at the border post-Riley, the majority‘s decision likely will have a profound impact on law enforcement practices at our ports of entry and on the individuals subjected to those practices. Last year, customs officers searched more than 30,000 cell phones or other electronic devices of people entering and leaving the United States—nearly a 60 percent increase over the previous year.5 Meanwhile, for the more than 95 percent of Americans who own cell phones,6 these devices cоntain “the privacies of life” the Fourth Amendment exists to protect. Riley, 134 S. Ct. 2495 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). My answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border, like the Supreme Court‘s answer to manually searching a cell phone incident to arrest, “is accordingly simple—get a warrant.” Id.