A cell phone may be searched under the border search exception. While the Fifth Circuit hasn’t decided the issue yet, it soon will be [see quoted n.4, infra]. United States v. Molina-Isidoro, 2016 U.S. Dist. LEXIS 183368 (W.D. Tex. Oct. 7, 2016):
Indeed, the Court is not alone in reaching this conclusion; several other district courts analyzing the same issue have reached the same conclusion. See, e.g., United States v. Ramos, No. 16CR467 JM, 2016 WL 3552140, at *7-8 (S.D. Cal. June 3, 2016) (“First, it is important to recognize that [Riley’s] holding did not modify or undercut the paradigmatic border search exception.”); United States v. Kolsuz, No. 1: 16-CR-53, 2016 WL 2658156, at *11 (E.D. Va. May 5, 2016) (“Thus, although the Supreme Court’s decision in Riley appears to indicate that cell phones deserve the highest level of Fourth Amendment protection available, the highest protection available for a border search is reasonable suspicion.”); United States v. Caballero, No. 15cr2738-BEN, 2016 WL 1546731, at * 6 (S.D. Cal. Apr. 14, 2016) (“Although Riley could be applied to a cell phone search at the border, this Court is bound by Cotterman …. Cotterman is not clearly irreconcilable with the reasoning … Riley, as evidenced by a number of courts finding that Riley simply does not apply to cell phone searches at the border.”); United States v. Hernandez, No. 15-CR-2613-GPC, 2016 WL 471943, at *3 (S.D. Cal. Feb. 8, 2016) (“[A]lthough the Court did hold in Riley that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual incident to arrest, the Court gave no indication that Riley’s holding applied to the border search exception.”); United States v. Blue, No. M4-CR-244-SCJ, 2015 WL 1519159, at *2 (N.D. Ga. Apr. 1, 2015) (“I conclude that the search here falls within the well-established parameters of a border search requiring no warrant. Riley … has no direct application to the circumstances presented here. Defendant likewise has cited no authority on point to support his position that the Riley reasoning changes the law of border search.”); Saboonchi, 48 F. Supp. 3d at 818 (“[T]he [Supreme] Court gave every indication that its [Riley] holding was limited to searches incident to arrest and no indication that it intended to exempt cell phones form all warrantless searches.”).
n.4: However, this precise issue is currently on appeal before the Fifth Circuit after a sister district court in the Western District of Texas, Del Rio Division, found that Riley does not extend to searches of cell phones at the border. See United States v. Escarcega, No. 24, 4:15-CR-275 (W.D. Tex. July 29, 2015), appeal docketed, No. 15-51090 (5th Cir. Nov. 18, 2015).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)