S.D.Cal.: A cursory search of a cell phone of a person arrested for importation of drugs was permissible under the border search exception

A cursory search of a cell phone of a person arrested for importation of drugs was permissible under the border search exception. This was no deep forensic evaluation. Defendant also showed standing in the cell phone in his possession. “Specifically, in his declaration, Caballero says that at the time of the arrest he possessed a black LG cell phone, that he used the cell phone, and that the phone was given to him by an ex-girlfriend. He did not consent to the search of that cell phone. This comports with the interrogation transcript and the officer’s arrest report and is sufficient for standing.” United States v. Caballero, 2016 U.S. Dist. LEXIS 51132 (S.D.Cal. April 14, 2016):

The question presented by this case is this: once a person is placed under arrest at the border, may officers conduct a cursory search of the arrestee’s cell phone without a warrant? Riley says, “No.” But, Riley does not address a search at the border. The border search exception says, “Yes.” But, neither the Supreme Court, nor the Ninth Circuit, has decided a case involving the heightened privacy interests implicated by a cell phone search at the border after an arrest.

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f. Cotterman permits the warrantless search in this case

The warrantless, cursory search of Defendant’s cell phone in this case is clearly permissible under the border search doctrine enunciated by Cotterman. With the discovery of undeclared, illicit drugs hidden in Defendant’s vehicle, law enforcement officers had plenty of evidence to meet the heightened standard: reasonable particularized suspicion of unlawful conduct. Officers certainly had reasonable suspicion to search the cell phones carried by Caballero after finding 15 kilograms of methamphetamine and one kilogram of heroin hidden in the gas tank of Caballero’s automobile as he crossed the border.

There is no question that a cell phone search, limited as it was in this case, qualifies as a reasonable search at the international border when performed prior to an arrest. Cotterman dictates this much. Since the Cotterman decision is almost on all fours, it controls the outcome of this motion to dismiss. Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest. Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable. Cotterman, 709 F.3d at 960 (“In view of these principles, the legitimacy of the initial search of Cotterman’s electronic devices at the border is not in doubt. Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in [United States v.] Seljan, [547 F.3d 993 (9th Cir. 2008)(en banc)] where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable.”); United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (“Therefore, we are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”).

g. The arrest makes this case different

What makes this case different is that there was no arrest before the laptop search in Cotterman. Cotterman was permitted to pass into the country. Only his laptops and a camera were detained and searched. In fact, Cotterman was able to flee to Australia two days later. Once an international traveler is placed under arrest at the border, the context changes. …