S.D.Cal.: Riley does not apply to a search of a cell phone at the border

Riley does not apply to a search of a cell phone at the border. Calling it “investigatory” doesn’t add anything to the argument. “[A]n entire body of jurisprudence has been built around border searches, and the specific lexicon used by Defendant does not strip that paradigm of the temporal and spatial flexibility built into it.” United States v. Ramos, 2016 U.S. Dist. LEXIS 73571 (S.D.Cal. June 3, 2016):

Defendant’s primary argument is that the search of his cell phone does not constitute a border search. Specifically, Defendant contends that the justification for a border search exception — preventing the entry of unwanted persons or contraband — is inapplicable here. (Doc. No. 26-1, p. 5). This is because unlike the searches in Arnold and Cotterman, where the purpose of the laptop searches was to prevent the entry of unwanted items into the United States, here, the search followed Defendant’s arrest, and therefore, was “investigatory,” i.e., conducted solely to gather evidence in an ongoing criminal investigation. (Id.). Essentially, Defendant argues that the “unwanted effects” here, methamphetamine, had already been seized hours before the agents searched the phone.

To the government’s argument that the search took place at the border, Defendant responds that a warrantless search does not become a border search just because it takes place at a Customs and Border Protection office near the physical border. Defendant argues the court should find this search was not a border search for the following reasons. First, the purpose of the search was investigatory. (Id., citing United States v. Kim, 103 F. Supp. 3d 32, 57-59 (D.D.C. 2015)). Second, the government already admitted that the search was conducted incident to Defendant’s arrest, and therefore, it triggers the warrant requirement established by Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). (Id. at p. 4). Third, Defendant contends, the search of the phone occurred more than five hours after his arrest. (Id.). Fourth, the agents searching the phone were not customs officials, but HSI special agents specifically assigned to investigate Defendant for drug trafficking. (Id.).

Finally, Defendant argues, regardless of the classification of the search, the court should find that this search was unreasonable under the Fourth Amendment by “assessing, on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.” (Id. at p. 5, citing Riley, 134 S. Ct. at 2484). Here, according to Defendant, the search was a significant intrusion upon his privacy, given the nature and the volume of information cell phones contain. Yet, the search was not required to further any legitimate government interest because the agents could have waited to obtain a warrant before satisfying the “generalized interest in finding additional evidence of a completed crime.” (Id. at p. 6).

Defendant’s position is unsupported and ultimately unpersuasive. First, Defendant cites no authority, and the court has found none, supporting the proposition that a border search is somehow converted into a search incident to arrest if its nature is “investigatory.” Defendant argues that there is a distinction between “investigatory” border searches and searches for the purpose of “protecting the United States’ sovereign integrity by excluding unwanted persons or things,” but he fails to explain how and why the search, conducted post-arrest and by HSI agents, was disqualified as a border search. The point Defendant misses is that a traditional (pre-arrest) border search is also conducted to (1) investigate possible criminal activity, and (2) gather evidence of wrongdoing. Just as a search of a home is the classic example of a search requiring a warrant, border searches constitute a paradigmatic exception to the warrant requirement. As discussed earlier in this order, an entire body of jurisprudence has been built around border searches, and the specific lexicon used by Defendant does not strip that paradigm of the temporal and spatial flexibility built into it.

Additionally, the word “investigatory,” used as a qualifier by Defendant, is not helpful here. If the word “investigatory” in this context means further exploration into the possibility of a crime being committed, every border search would be investigatory in nature. In this particular instance, the search might not have uncovered additional information regarding the threat Defendant individually posed to “the United States’ sovereign integrity,” but it might have uncovered information about the larger organization involved in the smuggling of the methamphetamine, including information about more contraband entering into the country at that time or the location where Defendant was to drop off or transfer the drugs. Even if this search had a purpose other than “protecting the United States’ sovereign integrity by excluding unwanted persons or things,” there is no way to discern that from the present record.