W.D.Tex.: A cell phone may be searched under the border search exception [CA5 to decide soon]

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).

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