Based on some other circuits, digital forensic searches require at least reasonable suspicion and no warrant. Defendant’s digital search complied with the rules of other circuits, so it was at least in good faith. United States v. Aguilar, 2020 U.S. App. LEXIS 28057 (5th Cir. Sept. 2, 2020):
Neither this court nor the Supreme Court has announced whether forensic digital border searches require individualized suspicion. But, at the time of the search of Aguilar’s phone, the Ninth Circuit, the Fourth Circuit, and a Maryland district court had concluded that forensic digital border searches require reasonable suspicion. See United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc); United States v. Kolsuz, 890 F.3d 133, 144-46 (4th Cir. 2018), as amended (May 18, 2018); United States v. Saboonchi, 48 F. Supp. 3d 815, 819 (D. Md. 2014). It appears to us, however, that no court had required a warrant to conduct a forensic search of a cellphone at the border.
Given the state of the law at the time Aguilar’s phone was forensically searched, we conclude that the border agents had a good faith, reasonable belief that they could search Aguilar’s phone without obtaining a warrant. At the time of the search, CBP knew Aguilar had attempted to cross the border with Cano and Hernandez who were carrying four cans that physical inspection and x-rays revealed to be suspicious. Further, a K-9 unit had alerted the agents to the presence of narcotics in the cans, and Aguilar had implicated himself as the purchaser of the cans’ contents. Thus, there was clearly “a particularized and objective basis for suspecting [Aguilar] of criminal activity,” which is all that is required to establish reasonable suspicion, the highest level of suspicion that had been required at the border at the time of the search. See Ornelas v. United States, 517 U.S. 690, 696 (1996) (internal quotations and citations omitted). And, although Riley made clear that individuals have a heightened privacy interest in smart phones, this court has held post-Riley that border agents acted reasonably when they “continue[d] to rely on the robust body of pre-Riley caselaw that allowed warrantless border searches of computers and cell phones.” Molina-Isidoro, 884 F.3d at 292. We therefore agree with the district court that the good faith exception to the exclusionary rule applies to the forensic search of Aguilar’s phone, and we affirm the district court’s denial of Aguilar’s motion to suppress.