Each year, border officials examine tens of thousands of electronic devices as they cross into and out of the United States.1 Although these devices contain staggering amounts of private data,2 the Fourth Amendment affords their owners far less protection than they might imagine3 due to an exception to the warrant requirement that gives government officials broad authority to conduct warrantless searches at the United States’ international border.4 And though many courts have emphasized that there must be some limit on this “border search exception,”5 the circuit courts have sharply divided over the nature of any such limit.6 Recently, in United States v. Cano,7 the Ninth Circuit held that the border search exception authorized warrantless cell phone searches only when directed at finding digital contraband.8 Though on its face Cano increased Fourth Amendment protections for border crossers,9 the court’s permissive application of its newly announced standard on the scope of the border search exception demonstrates the illusory nature of these purported protections.
On July 25, 2016, Miguel Cano attempted to cross from Mexico into the United States at the San Ysidro Port of Entry.10 Customs and Border Protection officers referred Cano to a secondary inspection, which revealed more than thirty pounds of cocaine sealed inside his spare tire.11 The officers arrested Cano.12 While Cano was in custody, Homeland Security Investigations (HSI) agents conducted three searches of his cell phone.13 The agents conducted the first and second searches manually, examining Cano’s text messages and call log, and recording some of the listed phone numbers.14 During the third search, the agents used Cellebrite software to download data from Cano’s phone.15
Before trial, Cano moved to suppress the evidence obtained from the searches, arguing that the HSI agents violated his Fourth Amendment rights by searching his phone without a warrant.16 The district court held that the agents were entitled to conduct the searches under the border search exception.17 The court rejected Cano’s argument that the exception applied only where the purpose of the search was to “prevent the entry of unwanted persons or things,”18 determining that “border search cases do not turn on the purpose or motivation behind the search.”19 Instead, the court analyzed the searches exclusively under the two-tiered suspicion framework of United States v. Cotterman,20 which required reasonable suspicion for “forensic” searches, and no suspicion for “manual” searches.21 A forensic search is distinguished from a standard “manual” search by its “comprehensive and intrusive nature” and use of “computer forensic software.”22 The court found even the most intrusive of the searches — the Cellebrite download search — to be justified under the exception,23 because even if it were considered a forensic search, the discovery of cocaine provided the reasonable suspicion24 necessary to forgo the warrant.25 Cano was eventually convicted.26
The Ninth Circuit reversed. Writing for a unanimous panel, Judge Bybee27 vacated Cano’s conviction after determining that the border officials violated Cano’s Fourth Amendment rights and that most of the evidence from their searches should have been suppressed.28 In articulating the appropriate standard for the border search exception, Judge Bybee explicitly extended the Cotterman framework to cell phones, holding that manual border searches of cell phones require no suspicion, while forensic searches require reasonable suspicion.29 The court dismissed the notion that the logic of Riley v. California,30 which established heightened requirements for cell phone searches incident to arrest,31 is equally applicable in the border search context.32 Given the diminished expectation of privacy at the border,33 Judge Bybee reasoned, Riley had not abrogated Cotterman and Cotterman’s two-tiered suspicion framework properly governed the analysis.34
Turning to the proper scope of the border search exception, Judge Bybee found that because “‘every border-search case the Supreme Court has decided involved searches to locate items being smuggled,’ rather than evidence,”35 only searches directed at “determin[ing] whether the phone contains contraband” were permissible under the exception.36 Searches for evidence of contraband or “border-related crimes” were outside the exception’s scope.37 Integrating the scope standard and suspicion framework, the court concluded that border officials could conduct warrantless forensic searches of cell phones only “when they reasonably suspect that the cell phone contains contraband.”38
Under this standard, the court found the first manual search — which verified there were no text messages on the phone — was properly directed at finding contraband, as “[c]hild pornography may be sent via text message.”39 The court found the second manual search, however, to be outside the scope because the “recording of the phone numbers and text messages” had “no connection to ensuring that the phone lack[ed] digital contraband.”40 Nevertheless, the court condoned the perusal of Cano’s call log.41 Noting that “[c]riminals may hide contraband in unexpected places,” Judge Bybee found that such a perusal could be necessary to ensure the log did not contain “surreptitious” digital contraband.42 Finally, the court held that if the third search — the one conducted with Cellebrite software — was a “forensic search,” then it was unreasonable, as the agents could not have reasonably suspected that Cano’s phone contained contraband.43
Having found that at least one of the searches violated the Fourth Amendment, the court held the proper remedy was suppression of the evidence, as the “good faith exception” did not apply.44 The good faith exception allows for the admission of evidence from an improper search when the search was conducted “in objectively reasonable reliance on binding judicial precedent.”45 Judge Bybee determined that because Cotterman involved a direct search for contraband, it could not have justified the search for evidence of future crimes on Cano’s phone.46
Finally, the court rejected Cano’s claim that the government violated his rights under Brady v. Maryland47 and Rule 16 of the Federal Rules of Criminal Procedure by failing to turn over evidence related to his third-party defense theory.48 Because the prosecutors did not have knowledge of, or access to, the documents Cano was requesting, Judge Bybee reasoned, they could not have withheld those documents.49
On its face, Cano’s narrowing of the border search exception’s scope to encompass only cell phone searches directed at finding digital contraband strengthens Fourth Amendment protections.50 Yet the court’s application of the standard to the two manual searches of Cano’s phone reveals that it does little to cabin the practical scope of manual searches, and consequently fails to increase protections for border crossers. Indeed, the interaction of the court’s application of the exception with both existing Fourth Amendment doctrine and new technology could allow officers at the border to continue to conduct nearly limitless manual cell phone searches. And the court’s analysis of the agents’ putatively forensic third search, conducted under the integrated reasonable suspicion of contraband standard, further underscores the lack of protections from manual searches.
The court’s analysis of the first manual search demonstrates the extent to which its scope inquiry is susceptible to evasion by pretext. Neither of the border agents’ subjective motivations for conducting this search — finding “investigative leads” or searching for “evidence of other things coming across the border”51 — comported with the court’s requirement that cell phone searches be directed at finding contraband itself rather than at finding evidence of contraband or other crimes.52 But the reasonableness of a government search is determined under an objective standard,53 meaning that a court must uphold objectively reasonable searches even when border agents admit to subjective search motivations outside the permissible scope.54 As a result, the court eschewed the agents’ subjective motivations and relied instead on its own determination that looking through text messages was objectively within the scope of the exception.55 And because such a determination is the end of the inquiry, the manner in which the court conducts its reasonableness analysis becomes all the more important to future courts tasked with implementing this new scope standard.56 Yet the Cano court provided little explanation for its determination, noting only that text messages are the type of thing that “may” house digital contraband.57 In providing guidance only at such a high level of generality, the court did little to deter future pretextual searches.58
When the Cano court did attempt to draw an administrable line — in its analysis of the second manual search — it did so in a manner that expanded, rather than limited, the universe of rationalizations that could be used to evade the strictures of its scope standard. By finding “record[ing] phone numbers found in the call log” to be outside the scope while allowing officers to “thumb through” the call log,59 the court authorized border agents to manually examine the call log of every person passing through the border — without any quantum of individualized suspicion — on the grounds that such an examination objectively constitutes a search for contraband. This exposes a trove of noncontraband digital content, much of it private in nature,60 to the gaze of any border agent inclined to look.
And by justifying that line drawing with the generalization that “[c]riminals may hide contraband in unexpected places,” the court potentially extended the permissible range of content that can be “thumb[ed] through” to any app on the phone.61 Though Cano did not cite any authority to support this generalization, there is ample evidence that many smartphone users do, in fact, use apps designed to hide digital contraband.62 These “vault apps” can be made to resemble any number of commonplace apps — from calendars to calculators63 — that would never be thought to house contraband.64 Operating under Cano, government officials familiar with vault apps could credibly claim that manually examining the contents of every application on a cell phone was part of a dutiful search for “surreptitious images or videos.”65 Such an outcome, which creates a universal post hoc rationalization for cell phone searches, implicitly authorizes near-boundless searches.
Furthermore, application of the Cano standard could bring the contents of a phone’s call log or other apps into the plain view of a border official, thus paradoxically triggering seizure of noncontraband that, in theory, could not be searched for under Cano’s scope conception.66 Under the plain view doctrine, law enforcement officials may seize plainly viewable evidence to which they have a “lawful right of access,”67 so long as its incriminating nature is “immediately apparent.”68 In United States v. Seljan,69 the Ninth Circuit relied on the plain view doctrine to uphold the seizure of a letter containing “evidence of possible pedophilia” by customs agents searching for undeclared currency.70 Though such a letter — if stored digitally — would be outside the scope of the border search exception under Cano, as it would be merely evidence of contraband,71 the officers would be justified in “thumb[ing] through” it — just as they were in perusing Cano’s call log — and its seizure could still be permitted under the plain view doctrine, just as in Seljan.72
The court’s analysis of the third search, however, shows there is a way to implement a scope standard that is resilient to these doctrinal challenges and that more effectively limits warrantless border searches to those within the exception’s scope. Evaluating the putatively forensic search, the court determined that the agents did not have the reasonable suspicion of contraband necessary to conduct a warrantless search.73 This determination ended the inquiry.74 Tethering the scope standard to the suspicion standard in this way moves the focus of the analysis earlier — to before the initiation of the search. This approach prevents agents not searching for contraband from ever obtaining a “lawful right of access” to the phone’s content, minimizing the chances of an outside-the-scope seizure under the plain view doctrine. And where this tethered analysis ends the inquiry altogether — as it did here — it obviates the need for the pretext-facilitating “objective” analysis of specific search techniques. This approach puts the lack of protection offered by the standard for manual searches — which have no suspicion requirement to which their scope analysis could be tethered75 — into sharp relief.76
The Cano court’s analysis of the first two searches thus demonstrates that its newly announced scope standard provides minimal protection from manual cell phone searches at the border. Without the requirement of reasonable suspicion of contraband, the manual search scope standard is enforced only through the easily circumvented objective purpose analysis. Though the Cano court sought to ensure that “border officials [were] limited to searching for contraband only,”77 Cano’s attempt to implement that command came closer to perpetuating a paradigm where “at the border, anything goes.”78