S.D.Tex.: Warrantless search of cell phone six years after border crossing violated 4A

Defendant crossed the border in July 2012, and his phone was seized and somewhat analyzed. On the eve of trial in July 2018, the government did a full search without a warrant. Defendant moves to suppress, and it’s granted. The second search six years later cannot be justified by the border search or any other exception. United States v. Gandy, 2018 U.S. Dist. LEXIS 118540 (S.D. Tex. July 17, 2018):

The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States after being denied entry to the United Kingdom. Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would “both undervalue the core Fourth Amendment protection afforded” cell phones under Riley and “‘untether’ the [border-search] exception ‘from the justifications underlying it.'” Collins, 138 S. Ct. at 1667 (citing Riley, 134 S. Ct. at 2485).

Nor can the government demonstrate any exigency, such as “the need to prevent the imminent destruction of evidence …, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury,” that would justify searching Gandy’s phone without a warrant. Riley, 134 S. Ct. at 2494.

The government’s warrantless search of Gandy’s phone violated the Fourth Amendment.

See Techdirt: Court Rejects Evidence From Warrantless Search Of Phone Six Years After The Gov’t Seized It by Tim Cushing

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