United States v. Cano, No. 17-50151 (9th Cir. 2019)
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The Ninth Circuit reversed the district court's denial of defendant's motion to suppress evidence obtained from warrantless searches of his cell phone by a Customs and Border Patrol official. Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that "reasonable suspicion" in this context means that officials must reasonably suspect that the cell phone contains digital contraband. Furthermore, cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.
In this case, the panel held that the officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Therefore, most of the evidence from the searches of defendant's cell phone should have been suppressed. Finally, the panel held that defendant's Brady claims were unpersuasive. Because the panel vacated defendant's conviction, the panel did not reach his claim of prosecutorial misconduct.
Court Description: Criminal Law. The panel reversed the district court’s order denying the defendant’s motion to suppress evidence obtained from warrantless searches of his cell phone by Customs and Border Protection officials, and vacated his conviction for importing cocaine. Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The panel further concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime cannot be justified by the purposes of the border search exception to the Fourth Amendment warrant requirement. The panel held that to the extent that a Border Patrol agent’s search of the defendant’s phone – which included the recording of phone numbers and text messages for further processing – went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of a border search and was unreasonable as a border search under UNITED STATES V. CANO 3 the Fourth Amendment. The panel held that although the agents had reason to suspect the defendant’s phone would contain evidence leading to additional drugs, the record does not give rise to an objectively reasonable suspicion that the digital data in the phone contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the defendant’s phone. The panel held that the good faith exception to the exclusionary rule does not apply because the border officials did not rely on binding appellate precedent specifically authorizing the cell phone searches at issue here. Rejecting the defendant’s contention that the government violated his rights under Brady v, Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16, by failing to turn over certain information he requested from the FBI and DEA in pursuit of this third-party defense, the panel found no evidence that the prosecution had knowledge or possession of evidence showing that the defendant’s cousin or his cousin’s gang were involved in drug trafficking at the Mexico-California border, and held that the prosecutor should not be held to have “access” to any information that an agency not involved in the investigation or prosecution of the case refuses to turn over. 4 UNITED STATES V. CANO
The court issued a subsequent related opinion or order on September 2, 2020.
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