Supreme Court

No Fourth Amendment Protections Against Warrantless Cell Phone Searches at U.S. Border, Says Federal Court

"Border searches never require a warrant or probable cause."

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In its 2014 decision in Riley v. California, the U.S. Supreme Court held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cell phone without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote for the majority. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person's cell phone? Does the Fourth Amendment require the government to get a warrant before searching cell phones at the border? According to a decision issued this week by the U.S. Court of Appeals for the 11th Circuit, the answer to that question is no.

The 11th Circuit's ruling came in the matter of United States v. Vergara. Hernando Vergara is a U.S. citizen who was returning home from a cruise to Mexico. Because of a prior conviction for possessing child pornography, a Customs and Border Protection officer searched his luggage, including the three cell phones that Vergara was carrying. One of those phones contained "a video of two topless female minors." The Department of Homeland Security entered the picture at that point. Vergara's cell phones were taken away to a DHS facility where they were subjected to a warrantless forensic search, which typically involves retrieving deleted files and other significant inspections of the phone's digital records. DHS discovered child pornography on Vergara's phones.

Vergara and his lawyers argue that this evidence should be deemed inadmissible because the government never obtained a search warrant. His position is based in significant part on the increased privacy protections for cell phone users that the Supreme Court recognized in Riley v. California.

But a divided panel of the 11th Circuit took a different view. "The forensic searches of Vergara's cell phones occurred at the border, not as searches incident to arrest," declared the majority opinion of Judge William H. Pryor. "And border searches never require a warrant or probable cause."

Writing in dissent, Judge Jill Pryor wrote that while she agrees "with the majority that the government's interest in protecting the nation is at its peak at the border," she disagrees "with the majority's dismissal of the significant privacy interests implicated in cell phone searches." In Riley, she noted, the Supreme Court recognized "the significant privacy interests that individuals hold in the contents of their cell phones." And in her view, "the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley." If it were up to her, "a forensic search of a cell phone at the border [should require] a warrant supported by probable cause."

One thing is clear: We have not heard the last of this debate. Either this case, or one very much like it, is almost certainly headed for the Supreme Court.

NEXT: Short Circuit: A roundup of recent federal court decisions

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  1. Thus, “Protecting the Nation” in the regard of the court’s ruling seems to imply that violating the rights of its citizens is not only approved, but necessary to their welfare, since they are part of the State.

    Did I understand that correctly?

  2. Some might say that “the government’s interest in protecting the nation is at its peak at the border” could credibly include protecting its civil liberties.

    1. Hello.

    2. Those that would say that would never be allowed near a federal judgeship.

  3. “And border searches never require a warrant or probable cause.”

    Huh.

    1. You can almost hear the smugness.


  4. But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person’s cell phone?

    What about your private bag and person that’s already assumed to be completely ok to search without cause or warrant, and why would anyone seriously think a cell phone is particularly different?

    Don’t misunderstand me, by the way, I think this is a good reason to make checking luggage and taking naked 3d pictures of people just because you’re coming home also shouldn’t be a thing but virtually everyone disagrees with me there it seems.

    1. What about your private bag and person that’s already assumed to be completely ok to search without cause or warrant, and why would anyone seriously think a cell phone is particularly different?

      The difference is (it seems to me) that your bags may contain dangerous contraband or stuff you are supposed to pay duties on. Searching bags for contraband or smuggled items stops those things from coming into the country. Searching phones is not effective at keeping bad things out. With encryption and the internet, you can get any information you want across the border.

      I think that’s a significant distinction. If there is a justification for removing 4th amendment rights at the border, then it is to keep dangerous stuff out. I don’t think that holds up for phone searches.

  5. If customs can search the contents of your briefcase when you cross the border without a warrant, I am not sure what the argument would be for disallowing a search of an electronic device. Maybe they should not be able to search either, but I am not sure why they should be treated differently.

    1. They ask if you have anything to declare as in merchandise that has not been taxed. You can hide that stuff in a briefcase but you cannot hide typical tourist merchandise in a cell phone.

      1. That isn’t the question at hand though. The question is why should cellphones in particular have a different burden than an agent literally shoving their fist up your ass without a warrant?

        1. Something like this may end up deciding the case. I think if I were the appellant, I’d probably try to say that with the Internet, it isn’t reasonable to think that the state would be doing much of anything to stop the smuggling of CP, spyware, pirated intellectual property, or any other contraband into the U.S. I think if this was 1990 there might be a pretty good case for permitting storage media searches at the border or whatever.

          1. Very good point.
            It is something the court would have to entertain though, the fact that people do stupid things while committing crimes all the time, does not alone give a reason to not search.

        2. Because the search of a phone (or laptop or whatever) is only for information. The search of your briefcase or asshole could yield smuggled items.

          I understand that there is some information which is considered off limits for export. But when you are coming home, there is no such “compelling interest”.

          1. If the pictures are “child porn”, an argument can be made that the picture files are smuggled contraband.

            1. Since so-called “picture files” are nothing but rows of positively or negatively charged regions in a piece of semiconductor crystal and any “picture” viewed with the help of that device exists only in the mind of the beholder, an argument can be made that prohibiting possession of such files is ThoughtCrime?.

    2. I think the idea is that a cellphone can hold a wider variety of personal, financial, and private information that a suitcase normally won’t. Someone won’t normally have print outs of their medical history, correspondence with an attorney, or other such protected information, but they might have some or all of that on their phone.

      Not to mention call logs, text messages, email, contacts, etc. There is way more at stake in a cell phone search than any search of a suitcase.

    3. If customs can search the contents of your briefcase when you cross the border without a warrant….

      Then you are not free from illegal searches, Mickey.

      In this context we need to remain cognizant of the fact that these searches have been authorized within 100 miles of the country’s borders for many years:
      8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border. (from the same link).

      1. Oops.

        “The authority for this is based on the Immigration and Nationality Act 287(a)(3) and copied in 8 Code of Federal Regulations (CFR) 287 (a)(3), which states that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border.”

        I will attempt to provide the link again here.

        If this does not work you may perform a web search for https://
        help.
        cbp.
        gov/
        app/
        answers/
        detail/
        a_id/
        1084
        ~/legal-authority-for-the-border-patrol

  6. Why do American’s cell phones need to be checked at the border?

    The “crime” of having photos of topless girls was evidently committed outside the USA, so the US Government has zero jurisdiction. Having pictures of topless under 18 girls should probably be protected by 1st Amendment because how can parents be excused from this while other people cant.

    Makes it real hard to be on the side of ICE to keep illegals out when they are wasting their time and resources on shit like this.

    The other thing I find disturbing is that the FBI was not called but the DHS? I thought DHS was for terrorism and the FBI was for domestic federal crimes.


    1. The “crime” of having photos of topless girls was evidently committed outside the USA, so the US Government has zero jurisdiction. Having pictures of topless under 18 girls should probably be protected by 1st Amendment because how can parents be excused from this while other people cant.

      Incorrect, he brought pictures back and even having possession of those is in and of itself a crime.

      1. Now in terms of parents being excused, well, the government can’t be said to have thought this through very well when they also consider that an underage teenage girl that sends a topless photo to her boyfriend can see her punished as a child pornographer.

        1. She doesn’t even have to do that. If a 12 year old takes a Polaroid of his dick, he instantly upon that point is guilty of both production and possession of CP. Show it to his girl friend? Yet another felony.

          1. Technically, isn’t he committing a crime just by LOOKING at his dick?

            1. Nope.
              He is committing a crime looking at a picture of his dick.

              1. In my state, there’s a crime called “use of a minor in a nudity-oriented performance”. It’s meant to outlaw under-age strippers. Since a minor can be both the offender and the victim in such crimes, I would think that they would be breaking the law simply by undressing with the lights on.

      2. Strangely enough the cops jerking off to them later isn’t a crime.

        1. How dare you denigrate their sacrifice for our safety.

          1. Wait a minute…isn’t “denigrate” racist?

      3. And likely a violation of whatever court orders were still in effect from his previous convictin.

    2. You are way behind the curve here. Quite some time ago, the U.S. for some bizarre reason decided to infantilize the Kingdom of Thailand by determining that it was not its responsibility to protect the children of Thailand from criminal perverts preying on them, and decided to make it an American sex crime for Americans to do so in Thailand. (Ditto for similar kiddie sex paradises.)

      This is all part of the rather alarming slope we’ve been headed down since the post-Watergate era, when our government decided to make it an American felony to bribe foreign officials in foreign countries–even though, in much of the world (Saudi Arabia comes easily to mind) the governments are so corrupt and/or cronyist and/or authoritarian, with little rule-of-law distinction between the public and private, that it isn’t clear to anyone where exactly “bribery” begins. We were for decades the only country on Earth that did this; and we’re still the only one that enforces it, which we do zealously.

      And, of course, don’t get me started on taxes. Is there any sign of any limitation the U.S. government acknowledges for itself? Can we expect this to stop anywhere? The lack of public alarm over this stuff is concerning. (Then again, when we let them get away with “structuring,” I guess they knew they could get away with anything.)

      1. Can we expect this to stop anywhere?

        At the woodchipper.

      2. American long arm law, wraps around the globe several times.

  7. They were following Supreme Court precedent. I really can’t blame the court here. We need to rethink the scope of border searches. The rule that there is no need for any probable cause was created when border searches meant revenue cutters stopping ships coming into the harbor. It never contemplated things like cell phones. The Supreme Court needs to look at this rule or Congress should enact protections. But the current rule doesn’ work.

  8. Oh, COME ON PEOPLE…IT’S RIGHT THERE!

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. EXCEPT AT THE BORDER.

    Duh!

    1. The court seems to accept that argument historically. I don’t think there is anything in this case that is going to cause them to overturn that precedent.

  9. The idea that since they can search your luggage they can search your cellphone falls on the idea of what they are searching for. If the police have a search warrant to search your house for stolen big-screen TV’s, are they allowed to search your sock drawer*? Ain’t no big-screen TV’s gonna be in a sock drawer. Customs isn’t supposed to be on a fishing expedition looking for any and all criminal activity, they’re supposed to be making sure you’re not a wanted criminal, trying to smuggle in contraband, you’ve made the proper declarations and paid the tariffs and import fees. If they want to pop the back off the phone to make sure you don’t have an illegal substance stashed inside the phone, that’s one thing, but what are you going to be smuggling in the digital contents of your phone? If they’re concerned about spies carrying secret documents, they should be checking them going out of the country, not coming in. I just don’t see where there’s any logical connection between what they’re supposed to be looking for and what they’re going to find on somebody’s phone.

    1. *That’s not a rhetorical question – I seem to recall a case from a couple years ago where the cops had a warrant to search for a stolen car or something and found a bag of weed in a shoebox on a closet shelf. The guy tried – unsuccessfully as I recall – to have the evidence stricken on the grounds that the cops had no right to be looking in a shoebox in his closet for a stolen car. Should have been stricken in my opinion.

      1. Wait, but that’s exactly the difference at hand. When Customs does a luggage search, they are doing it as a matter of routine. They have a purpose, but it’s a rather general purpose; they aren’t looking for anything in particular. They’re looking for anything that has not been declared and would be illegal to bring into the country undeclared. It’s not as though they are sitting down with a specific mandate, a specific purpose for the search, and saying, “I’m looking for weed.” Or “stolen cars,” or whatever. It’s general, open-ended.

        Also (I know it’s now the same agency because of that Joe Lieberman asshole, but the law should still recognize the traditional distinct purposes, which anyway are still carried out as distinct processes by distinct personnel) a Customs search isn’t looking for “wanted criminals” at all. That’s Immigration. Everyone is under a microscope by default when trying to enter the country.

        As mentioned above, the only case I can see for the appellant would be that since it’s so easy to smuggle electronic contraband into the U.S. in the era of high-speed Internet, the state’s purpose doesn’t outbalance the invasion of privacy.

  10. “border searches never require a warrant or probable cause.”

    OK. Search the border all you want.

  11. “a video of two topless female minors.”

    I mean this in the distinctly non-sexual way, can we get clarification on this? Two topless minors in the trunk of a car is a different story than two minors employed at a local bordello, two topless minors at the beach, or his 12-mo.-old twin granddaughter playing at the beach or whatever. I get that the crime was bringing the photos into the country but how the fuck did ICE/DHS know they were minors and/or should I assume that SCOTUS reviewed selectively redacted photos in this case or that they weren’t even able to view the materials at all?

    1. More to the point; two minors 6 months old at the beach, or two minors 17 years and 11 months old most anywhere?

  12. The court fucked up. The 4th amendment is not ambiguous, and it has no exemption for the “border zone” that the government has conjured out of thin air.

    -jcr

    1. This is not the “border zone,” in which most Americans live, which is indeed bullshit. This is the actual border, which this person is crossing to get into America, at which point his possessions are being searched by Customs at entry. As is routine, open-ended, and not in need of a warrant. This may be a very tough lift for appellant.

      1. So what is the magical line where affirmed Rights start to exist? Not at the border? Not 100 miles from the border? Seems like The Border should be the unambiguous line of Rights demarcation.

        1. I have to pass through metal detectors and open backpacks (at the request of agents) to get inside certain government buildings. They’re not required to produce warrants to do so. Border entry points do essentially the same thing.

          I guess cellphones are bit of a gray area.

          1. Govt buildings are places you choose/need to go to.
            They are place of higher security for the things needed to be done there.

            Sitting in a public park is not the same thing.

  13. As a citizen, prior permanent resident, and ex-‘legal alien’, you must understand that the ultimate authority for entry, or re-entry across the International border resides with the Immigration Officer. Irrespective of credentials, if the officer says no – you are back on the vessel.

    Funny story, an acquaintance decided to travel to the UK as she would like to work there. Traveling on a tourist visa when asked by UK immigration as to the ‘purpose of her visit’ said “I have a job interview”. She was promptly returned to the US.

    At least she got double air-miles 🙂

    1. You can not be refused entry into a country you hold citizenship in.

  14. By this logic, they should be allowed to search your house and personal records whenever you’re outside the country.

  15. 1. Why do people still not only use PINs for cell phones? Fuck the thumbprint. Fuck facial recognition. Use at least 6 digits on the PIN. Don’t be lazy.
    2. When they try to compel the search, shout lawyer.
    3. Fuck the gubmint, the fourth doesn’t exclude the border. In fact, it is affirmatively written to exclude the government from all such activities without any exclusion.
    4. Mickey Rat and Diego above are falling into a similar tap tallied here in the past as vehemently illegitimate on the governments behalf. Arguing that a computer doesn’t require a warrant because all computers are fallible is exactly the same stupidity dressed up here as legal jurisprudence.

    1. The courts disagree so good luck with that.

    2. While I agree a good, strong PIN is mandatory, the government would almost certainly claim that refusing to divulge the PIN is an obstruction of “justice”.

  16. Wipe your phone. Restore once you cross. Pretend NSA isn’t scanning all your files.

    1. Obstruction of justice!

  17. The US Border agents consider anything within 100 miles of a US border, to be the border.
    In some states, this constitutes the majority of the state, and overall it is some 1/3 of the US population.
    They cannot have both. If it is going to be a border search, then they will have to define the border as ~1 mile from the border, or they should always have to get a warrant. Actually the latter always anyway, but the former is a good legal argument for SCOTUS.

  18. If they took it to a DHS facility it was not searched at the border.

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