United States v. Vergara, No. 16-15059 (11th Cir. 2018)Annotate this Case
Vergara returned to Tampa, on a cruise ship from Cozumel, Mexico with three cell phones. Customs Officer Ragan searched his luggage and asked Vergara to turn a phone on and then looked through the phone for about five minutes. Ragan found a video of two topless female minors and called DHS investigators, who decided to have all three phones forensically examined. A forensic examination of two phones conducted that day revealed more than 100 images and videos, “the production of which involved the use of a minor engaging in sexually explicit conduct.” The phones were not damaged. Charged under 18 U.S.C. 2252(a)(1), (b)(1) and 2252(a)(4)(B), (b)(2), Vergara unsuccessfully moved to suppress the evidence. The court Vergara’s argument that the Supreme Court’s 2014 holding, Riley v. California, required the agents to obtain a warrant before conducting the forensic search. Vergara was sentenced to 96 months of imprisonment followed by supervision for life. The Eleventh Circuit affirmed. The forensic searches occurred at the border, not as searches incident to arrest. Border searches never require a warrant or probable cause but, at most, require reasonable suspicion. Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones.