CA9: A manual border search of a cell phone doesn’t require RS, but a forensic search does

A manual border search of a cell phone doesn’t require reasonable suspicion. A forensic search, however, requires reasonable suspicion. United States v. Cano, 2019 U.S. App. LEXIS 24457 (9th Cir. Aug. 22, 2019). Summary by the court:

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The panel further concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime cannot be justified by the purposes of the border search exception to the Fourth Amendment warrant requirement.

The panel held that to the extent that a Border Patrol agent’s search of the defendant’s phone — which included the recording of phone numbers and text messages for further processing — went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of a border search and was unreasonable as a border search under the Fourth Amendment. The panel held that although the agents had reason to suspect the defendant’s phone would contain evidence leading to additional drugs, the record does not give rise to an objectively reasonable suspicion that the digital data in the phone contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the defendant’s phone. The panel held that the good faith exception to the exclusionary rule does not apply because the border officials did not rely on binding appellate precedent specifically authorizing the cell phone searches at issue here.