Border Search of Immigration Lawyer's Phone Was Likely Unconstitutional Retaliation for Lawyer's Speech
From Judge Allison Burroughs (D. Mass.) Friday in Lattarulo v. Mullin:
Andrew Lattarulo is an immigration lawyer and part owner of the law firm Georges Cote LLP, which represents "thousands of clients in active immigration proceedings." Lattarulo also runs a popular Instagram account featuring videos of himself discussing "know-your-rights information about U.S. immigration matters," which regularly "amasses hundreds of thousands of views." Georges Cote is currently being investigated by Homeland Security Investigations ("HSI"), the investigative arm of the Department of Homeland Security ("DHS"), for employing individuals without a legal right to work in the United States.
Audai Cote, "the registered agent and individual in charge of I-9 compliance" at the firm, was served with a Notice of Inspection on September 8, 2025. Unlike Lattarulo, "Cote is not an immigration attorney—he focuses on personal injury." The firm responded on September 12, 2025, and the government sent Cote a Notice of Suspect Documents on September 25, 2025. The firm was given ten days to attempt to verify the identity and work authorization of the employees named in the Notice of Suspect Documents.
In late September 2025, while the HSI investigation proceeded, both Lattarulo and Cote travelled from Boston to Aruba for a weekend trip. On September 27, 2025, Cote arrived back at Logan Airport from Aruba without issue. Lattarulo made the same journey the following day, September 28, 2025. Lattarulo passed through customs preclearance in Aruba before boarding a flight to Boston.
When his flight arrived at Logan Airport, three U.S. Customs and Border Protection ("CBP") agents and one HSI officer stopped Lattarulo as he got off the plane. The agents seized his cell phone without a warrant and then downloaded a complete copy of the data stored on the phone. Eight days later, they returned the cell phone via overnight delivery.
The seized cell phone data is currently in a format that is not readable or reviewable, but the government intends to convert the data to an accessible format and search it if the Court permits. The data includes confidential information, including privileged attorney-client communications related to Lattarulo's clients. {The Government was clear that any search of the contents of the phone would utilize a taint team to protect privileged information.} …
The court held that Lattarulo was likely correct on his claim that the search was unconstitutional retaliation for his speech, and therefore granted "a preliminary injunction enjoining Defendants from accessing the data obtained from the phone before this action is resolved":
"[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." … The retaliation issue [here] turns on causation—that is, whether the seizure and search of Lattarulo's cell phone would have occurred but for his protected speech.
Respondents have provided no evidence that searches of cell phones are frequently conducted during the kind of employment investigation at issue here, and Lattarulo has directed the Court to sources which suggest otherwise. Indeed, Lattarulo's evidence suggests that any pursuit of criminal charges against employers for employing unauthorized immigrants is exceedingly rare. The fact that the government, after Lattarulo spoke out publicly against it, elected to adopt a highly unusual investigative method that appears designed to inflict a maximal burden on Lattarulo lends substantial support to an inference that its actions were pretextual.
The stage of the investigation at which the search occurred further bolsters the inference of pretext. Under HSI's own policies, the agency "presumes that employers who, within 10 business days of receiving a Notice of Suspect Documents, verify the identity and/or employment authorization of the listed employees, or take appropriate actions to address the apparent employment of unauthorized workers, have demonstrated reasonable care under the INA." The government's search occurred only three days after Georges Cote first received a Notice of Suspect Documents, meaning that the agency was still early in its period of "presum[ing]" compliance when it occurred. Thus, the government's actions here required it to short-circuit its orderly investigative procedures and cast aside its ten-day presumption of compliance in favor of immediately seizing Lattarulo's phone. That aggressive deviation from protocol strongly suggests that the seizure did not arise from an ordinary investigative motive.
Further, Lattarulo has identified an "otherwise similarly situated individual not engaged in the same sort of protected speech," who was not subjected to the same enforcement action: his law firm partner Audai Cote, who had the same or greater access to the firm's employment records but did not speak publicly about immigrant rights. Indeed, if the government was truly intent on seizing evidence at the first possible opportunity, Mr. Cote, who returned to America a full day before Lattarulo, would have been a more logical target. Nonetheless, the government opted to wait until Lattarulo touched down in Boston the next day and subject only him to an intrusive cell phone search. The balance of the evidence currently before the Court thus suggests that Lattarulo is likely to establish that he would not have been searched except for his protected speech.
{It is true that the presence of probable cause generally precludes a finding of causation in a retaliatory arrest case, but the Supreme Court has recognized a limited exception for situations in which officers who "have probable cause to make arrests [for a particular crime] … typically exercise their discretion not to do so," such as "an individual who has been vocally complaining about police conduct … [before being] arrested for jaywalking," By analogy, the limited record before the Court suggests that searches of cell phones are not regularly conducted during the kind of employment investigation at issue here and that Lattarulo's own law firm partner was not subjected to the same seizure and search of property.}
It is true that Defendants can "prevail … by showing that the [search] would have been initiated without respect to retaliation," and here Defendants state that they have additional evidence which would show as much, but they have not provided it because they assert that doing so would prejudice an ongoing investigation…. [T]he Court concludes that the limited record that is before the Court suggests that Lattarulo is likely to succeed on the merits of his First Amendment retaliation claim and that the record before it is therefore adequate to grant the limited preliminary relief contemplated by this order.
The court didn't resolve Lattarulo's Fourth Amendment claim, because it granted the preliminary injunction based on the First Amendment claim. But it did note the following:
Plaintiffs' Fourth Amendment claim turns largely on the scope of the border search exception to the Fourth Amendment's warrant requirement. That exception "is grounded in the government's 'inherent authority to protect, and a paramount interest in protecting, its territorial integrity.'" It allows the government to perform "routine" border searches of electronic devices without suspicion of any crime, and to perform "non-routine" border searches of electronic devices without a warrant, so long as the government has reasonable suspicion. Alasaad v. Mayorkas (1st Cir. 2021).
The question this case raises is: reasonable suspicion of what? In other words, what types of suspected criminal activities can the government use a warrantless advanced border search to investigate? The First Circuit in Alasaad stated that the exception applies to searches for "contraband" or for "evidence of contraband or a border-related crime." Later in its opinion, however, it stated that the exception applies to searches for "contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE." In most cases, of course, "border-related crime[s]" and "activity in violation of the laws enforced or administered by CBP or ICE" are synonymous, and the First Circuit in Alasaad appears to have intended to use those terms more or less synonymously.
The difficulty of this case lies in the fact that the suspected violation at issue—employment of unauthorized aliens in the United States in violation 8 U.S.C § 1324a—involves a law that is "enforced or administered by CBP or ICE" but arguably is not a "border-related crime." Based on the information before the Court, there appears to be no connection between Lattarulo's border crossing (or, more broadly, the government's interest in policing the border) and the suspected crime that formed the basis for the government's border search. Rather, it appears that the government seized on a fortuitous border crossing following a weekend vacation as an opportunity to search for evidence of a domestic crime it was already investigating.
Even though the suspected violation involves aliens and a law administered by ICE, the Court is not convinced that the First Circuit in Alasaad intended for the border exception to apply to investigations into activity that occurred nowhere near the border and that has no relationship to the border crossing during which the search occurred. Nor is the Court convinced that application of the border search exception to this type of investigation would further the principles underlying the exception. Nonetheless, given the novelty of these questions and the fact that a ruling on them is not necessary, the Court will refrain at this point from reaching a firm conclusion on the issue of the border search's applicability….
Mary Lemay and Patrick M. Hanley (Butters Brazilian LLP) represent Lattarulo.