S.D.Cal.: Cell phone was validly searched under border search exception; obtaining passcode was likely unlawful, but government isn’t going to use it

Defendant was arrested at Calexico for importing meth. While in the holding cell, she gave up the password for the cell phone. The government isn’t going to use her revealing the password as evidence, but it wants to use the phone. The phone was validly searched under the border search exception. If the government did want to use the password, the court would suppress it because she was in custody. United States v. Hernandez, 2018 U.S. Dist. LEXIS 137475 (S.D. Cal. Aug. 15, 2018).

Defendant’s first arrest and the evidence derived from it was unlawful, and the government concedes that it should be suppressed. The government argues the second is admissible as attenuated from the first. Only it’s not, and it is suppress also. “The burden of showing the admissibility of a confession obtained through custodial interrogation after an illegal arrest ‘rests, of course, on the prosecution.’ Brown, 422 U.S. at 604. Here, by a wide margin, the Government has failed to sustain its burden of establishing that Lopez’ second confession was sufficiently remote and disconnected from his concededly illegal arrest and initial interrogation to justify its admission under the attenuation doctrine. Accordingly, Lopez’ motion (doc. 43) should be GRANTED, and all evidence and statements secured as a result of his unlawful arrest must be suppressed.” United States v. Tello-Lopez, 2018 U.S. Dist. LEXIS 138489 (S.D. Ga. Aug. 16, 2018)