E.D.N.Y.: CBP needs SW for cell phone border search

This case involves a border search of defendant’s cell phone, followed by a search warrant, and child pornography was found. “Sultanov now seeks to suppress both the contents of his cell phones and the statements he made to law enforcement while in the secondary inspection area. In support of his motion to suppress the physical evidence, Sultanov argues that the Fourth Amendment requires the search of a cellular device at the border to be supported by a warrant and probable cause — neither of which was present here. This raises the unsettled issue — one that is percolating among district courts within this Circuit, but which the Second Circuit has not yet addressed — whether the historical exemption to the warrant requirement at the border must yield to the heightened privacy interests implicated by the search of a modern cell phone. Because ‘[c]ell phones differ in both a quantitative and a qualitative sense from other objects’ a traveler might bring across the border, the Court concludes that it must so yield, and that the government should have obtained a warrant before conducting its search. Riley v. California, 573 U.S. 373, 393 (2014). Nevertheless, the Court denies Sultanov’s motion to suppress the evidence contained on his phones because the search warrant was issued and executed in good faith.” United States v. Sultanov, 2024 U.S. Dist. LEXIS 130742 (E.D.N.Y. July 24, 2024). See Reason: Courts Close the Loophole Letting the Feds Search Your Phone at the Border by Matthew Petti (“Customs and Border Protection insists that it can search electronics without a warrant. A federal judge just said it can’t.”).

Accord: United States v. Fox, 2024 U.S. Dist. LEXIS 130886 (E.D.N.Y. July 24, 2024) from a different USDJ:

As detailed herein, Homeland Securities Investigations Agent Edward Shapiro tracked Defendant Fox’s international travel for the apparent purpose of seizing her phone and laptop at the border. The devices were then seized at Miami International Airport and sent to New York, where he conducted a warrantless manual search of the phone days later for evidence of a domestic financial crime. Twenty-seven days after the seizure, Shapiro used evidence gathered from this search to apply for a warrant to perform a forensic search of the phone and laptop. The Government argues that this was permissible under the Fourth Amendment and a valid application of the border-search exception.

The court finds that Agent Shapiro violated Defendant Fox’s Fourth Amendment rights. Further, the good faith exception to the exclusionary rule does not apply because Agent Shapiro acted in reckless disregard of Ms. Fox’s Fourth Amendment rights when (1) directing the seizure of the phone and searching it, and (2) when applying for the warrant to conduct the forensic search once in possession of the phone, due to his omission of critical details in his affidavit supporting the warrant application and his unreasonable delay in applying for the warrant. Defendant Fox’s motion is therefore GRANTED in full.