Federal Judge Says ‘Riley’ Applies At Border; Warrants Are Needed For Some Cell Phone Searches

In 2014, the Supreme Court ruled that law enforcement officers need a warrant if they want to search people’s cell phones. Since that day nearly nine years ago, no federal court has managed to make that ruling stick at our nation’s borders, which have been declared Not-Quite-the-United-States when it comes to our rights.

The “Constitution-free zone” — the end result of our government’s insistence guaranteed rights* just get in the way of securing the border — sets the parameters for phone searches, rather than the ruling handed down by the top court in the land.

At the appellate level, the Fourth Circuit said border search warrant exemptions nullify Riley, allowing the government to memory-hole Supreme Court precedent anywhere people might be entering or exiting the country, including our nation’s many international airports.

The Seventh Circuit didn’t go as far as blessing blanket border exceptions to the Riley ruling. But it also didn’t go far enough in the other direction, settling for a Solomon-esque splitting of opposing arguments (plaintiff: all searches need warrants; government: no searches need warrants) that, unlike that Biblical story, really didn’t leave either contestant with a clear-cut win. The court shrugged and said, “Maybe someday we’ll actually generate some precedent. But today is not that day.”

The only appeals court that has come close to subjecting border searches to the Riley warrant requirement is the Ninth Circuit, whose jurisdiction covers a lot of this nation’s southern border. That ruling didn’t erect a warrant requirement, but it did place limits on border device searches. If border agents want to engage in searches predicated on nothing more than reasonable suspicion, they can only search phones for contraband. This means they can’t search phones for evidence of criminal activity. Instead, they must reasonably suspect the phones themselves are home to illegal content.

At some point in the near future, another appeals court (the Second Circuit, to be exact) will be asked to resolve this question. And that’s because the government just got an answer it didn’t like about border device searches from Judge Jed Rakoff — the federal judge that once very politely told the DOJ to go fuck itself because it clearly didn’t care its prosecutors were hiding information from defendants and relying far too often on junk science to secure convictions. (h/t Orin Kerr)

Rakoff’s decision [PDF] deals with the warrantless search of Jatiek Smith’s phone at the Newark (NJ) airport following a failed attempt to travel to Jamaica. (Smith was refused entry by Jamaican customs agents.) The forensic search performed by the CBP uncovered communications with gang members and possible evidence of insurance fraud. Smith filed a motion to suppress this evidence, alleging the search was unconstitutional. The court agrees.

Smith argues, first, that this search violated his Fourth Amendment rights. To this much of his motion, the Court agrees. While border agents have very substantial latitude to search a person’s body and effects without a warrant or probable cause during a border crossing, the Supreme Court has now made clear that searching the data contained on a person’s cell phone is not like searching his body or pockets. Rather, searching a cell phone will often allow law enforcement to learn all there is to know about its owner’s past movements, communications, and transactions — reams of information that differ quantitatively and qualitatively from the sorts of information a person could ever have carried with him before the advent of modern “smart” phones. See Riley v. California, 573 U.S. 373 (2014). Moreover, the vast majority of such information will likely have no connection to the traveler’s reasons for crossing the border on a given day.

Furthermore, unlike a traveler’s luggage or cargo — which, quite obviously, is not yet in the country at the time the traveler presents herself for inspection at the border and can therefore be stopped from coming in — the information on that traveler’s phone most likely already exists outside the phone (in cloud storage or other backups), such that a border search is far less likely to actually prevent anything unwanted from entering or leaving the country.

Since it bears so little resemblance to the historical definition of a border search (that of a person and perhaps the bags they physically carry), it cannot be treated the same way, especially with this particular Supreme Court precedent in play.

[S]uch searches extend the Government’s reach far beyond the person and luggage of the border-crosser — as if the fact of a border crossing somehow entitled the Government to search that traveler’s home, car, and office. The border search exception does not extend so far.

That’s how Judge Rakoff sees it. The border search exception cannot be applied to forensic searches of people’s devices and phones. Warrants are needed.

It’s a good call, but it’s undone by the CBP being granted the good faith exception. Unfortunate, but it’s probably the only sound outcome. There is no precedent that states affirmatively that warrants are needed to search cell phones at the border. What precedent there is either does not engage directly with this part of the issue or simply agrees with the government that the Constitution simply does not apply with 100 miles of any US border entry.

However, the government displayed plenty of bad faith en route to this ruling that, going forward, warrants are needed for device searches.

First, let’s compare and contrast the testimony pertaining to the government’s seizure of Smith’s phone:

Without seeking a warrant, HSI and FBI agents requested CPB agents to search Smith upon his return to Newark Airport “pursuant to [their] border search authority.” There, border agents searched Smith’s bag (in which Smith was carrying just under $10,000 in cash), seized Smith’s phone, and demanded his password. Smith claims he repeatedly refused to give his password, relenting only after he was told that “[i]f [he] did not open the phone [he] could be held without charge for as long as it took to open the phone.” The Government more cryptically represents that “Special Agents . . . requested Smith’s passcode, which Smith eventually provided.”

The CBP made a forensic copy of the phone’s contents, which was then searched several times by several law enforcement officers and agencies. The information discovered during this warrantless search was used as probable cause for a search — a search that had been underway thirty-eight days before the government even thought about getting a warrant.

And while good faith is awarded this time, it won’t happen again in this court. Judge Rakoff doesn’t like any of the government’s arguments which, if taken at face value, would vastly increase the government’s power to perform warrantless searches not just at the border, but anywhere a person might conceivably stash evidence of criminal activity. (Emphasis in the original.)

This Court agrees that the governmental interest underlying the border search exception is different from that underlying the search-incident-to-arrest exception, and it acknowledges that the former extends to preventing a wide variety of harmful things from entering the country.

But, as discussed above, “things” are different from “data”, so it is hard to see why the interests underlying the border search exception extend to the data stored on a traveler’s cell phone. To be sure, that data may contain information relevant to the Government’s determination as to whether a person should be allowed entry, but the Government has little heightened interest in blocking entry of the information itself, which is the historical basis for the border search exception. The Government’s more general investigative interest in data about the person or thing entering the country is entirely incidental to the fact of the cell phone being carried over the border, and could just as easily be relied upon to support searches of the person’s home, records, or past mail far away from the border.

The reconciliation of the competing interests may be unsatisfactory. There’s no suppression and the government gets to keep the evidence it obtained illegally. But the entire decision is well-written and thoughtful. And it does a masterful job poking holes in the arguments made by the handful of appellate-level courts that have talked themselves into ruling the Supreme Court’s Riley decision somehow doesn’t apply to Americans and their cell phones if they’re anywhere near a border. Whether or not this will have much weight when the Second Circuit takes up this case remains to be seen, but it does provide plenty of useful arguments for criminal defendants who’ve been subjected to similar border searches.