March 01, 2018 Feature

“Welcome Back to America! Now Gimme Your Phone” : Warrantless Cell Phone Searches at the Border

Edward J. McAndrew

If you want to search someone’s cell phone, “get a warrant.” So said the Supreme Court four long years ago, in Riley v. California, 134 S. Ct. 2473, 2495 (2014). More precisely, the Court stated that we have a reasonable expectation of privacy in the data stored in our phones, which cannot be searched without a warrant incident to a lawful arrest.

What if law enforcement agents seek to search a U.S. citizen’s phone at the customs checkpoint, after his vacation cruise returns from Mexico? Has the trip abroad stripped away all constitutional protection for the returning vacationer and his phone? Must he surrender his privacy right in his phone as a condition of returning home?

The Supreme Court has recognized an exception to the Fourth Amendment’s warrant requirement for routine searches at U.S. borders. See, e.g., United States v. Ramsey, 431 U.S. 606, 619 (1977). Routine “border searches” of persons, their luggage, and effects (even vehicles) can be conducted without probable cause or even a “reasonable suspicion” of wrongdoing. More intrusive, “nonroutine” searches require a reasonable suspicion of wrongdoing, but still no warrant.

The Eleventh Circuit recently became the first federal court of appeals to address squarely whether Riley requires a warrant to conduct a border search of a cell phone. In United States v. Vergara, 2018 U.S. App. LEXIS 6413 (11th Cir. Mar. 15, 2018), a split panel of the court held that agents may conduct a warrantless forensic examination of a U.S. citizen’s cell phone at the border.

Hernando Javier Vergara, a U.S. citizen who had previously been convicted of possession of child pornography, took a vacation cruise to Cozumel, Mexico. When his cruise ship returned to Tampa, a Customs and Border Protection (CBP) officer identified Vergara from the CBP’s daily “lookout” list. Vergara was escorted to secondary screening, where a CBP officer found three cell phones in his possession. The officer asked Vergara to power on a Samsung phone found in his luggage and then spent about five minutes looking through photos, “a couple of apps,” and videos on the phone. After seeing a video depicting two topless female minors, the CBP officer alerted a Homeland Security Investigations (HSI) special agent, who then reviewed the video, observed the logo of a website known to distribute child pornography, and interviewed Vergara.

The HSI special agent seized all three phones and took them to her office, where they were forensically examined that afternoon. The examination revealed more than 100 images and videos of child pornography. After a federal district court denied his motion to suppress the cell phone evidence, Vergara was convicted of transportation and possession of child pornography.

Writing for the majority, Circuit Judge William Pryor relied on pre-Riley precedent stating that “[b]order searches ‘never’ require probable cause or a warrant” and that “reasonable suspicion” is required “only ‘for highly intrusive searches of a person’s body. . . .’” Without much analysis, the majority dismissed Riley as “expressly limited . . . to the search-incident-to arrest exception.”

Another Judge Pryor saw it differently. In dissent, Judge Jill Pryor wrote that a search warrant based on probable cause should be required before a full forensic examination of a cell phone is permitted at the border. Following Riley’s analytic framework, she weighed the degree to which the warrantless search promotes the legitimate interest of the government in protecting its border against the degree of interference with a person’s privacy interest in his cell phone’s contents.

Although Judge Jill Pryor recognized that the government’s interest in controlling who and what may enter the country is “at its zenith” at the border, she also noted that a cell phone now contains an enormous amount of highly private information about all aspects of its owner’s life. She noted Riley’s declaration that a person’s cell phone is “quantitative[ly] and qualitative[ly] different from other ‘containers’ that are often searched.” Again quoting Riley, Judge Pryor wrote that even a cursory search of a phone “typically expose[s] to the government far more information than the most exhaustive search of a house.” But for a cell phone, a person could not carry across the border a compendium of his communications with others, of his “private interests and concerns,” and of his movements over an extended period of time. She also wondered why the government can take the time to transport seized devices to another location for comprehensive forensic examination but cannot visit a magistrate (even electronically) to obtain a warrant.

As this issue percolates through the federal judiciary, fault lines are developing over whether the more comprehensive forensic examination conducted in Vergara should require at least a reasonable suspicion, if not probable cause, of wrongdoing. In a leading pre-Riley decision, the en banc Ninth Circuit required reasonable suspicion for a full forensic examination of a laptop at the “extended border.” In January 2018, CBP issued a revised directive requiring reasonable suspicion for such searches. In 2017, CBP searched more than 30,000 digital devices of those entering or leaving the United States—a 60 percent increase over 2016.

Ensuring that the cell phones of U.S. citizens returning to the United States retain at least some level of constitutional protection will be of even greater importance as the government escalates its use of a border dragnet for warrantless searching of digital devices. This is particularly so for those who routinely handle confidential information, including lawyers, journalists, and many others.

Until the dust settles, you may want to leave those devices at home during that next international trip.

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Edward J. McAndrew

The author is the coleader of Ballard Spahr’s Privacy & Data Security Group and a former federal cyber-crime prosecutor at the U.S. Department of Justice.