CA11: Gov’t adequately protected against A-C materials being searched in border search of Venezuelan attorney’s cell phone; “no privileged material was ever found”

Defendant was a Venezuelan attorney whose cell phone was searched at the border. He said there likely was privileged attorney-client information on his phone, but it was searched under a DHS protocols to safeguard privileged information and legal advice was sought from an agency attorney before doing it. “The government took adequate precautions to safeguard against disclosing privileged material: the agents consulted with in-house counsel about how to handle the phones given privilege concerns; they limited their initial search to only pictures and videos, not text, to avoid discovering any attorney-client communications; and they obtained a warrant and assembled a filter team before more fully examining the phones’ contents. And ultimately, no privileged material was ever found. We thus find no error in the district court’s denial of Fonseca’s motion to suppress.” United States v. Fonseca, 2023 U.S. App. LEXIS 29217 (11th Cir. Nov. 3, 2023).

“All three Graham factors weigh in favor of Deputy Dailey and against Hansen. Deputy Dailey’s use of force was reasonable. This is particularly true given that Deputy Dailey’s decision to shoot Arbuckle once she began to reverse is the ‘type of split-second judgment, “made in tense, uncertain, and rapidly evolving” circumstances, “that [courts] do not like to second-guess using the 20/20 hindsight found in the comfort of a judge’s chambers.”’ Estate of Valverde, 967 F.3d at 1049. Because all the Graham factors weigh in favor of Deputy Dailey, we conclude that his actions were reasonable under the specific circumstance that he encountered. Deputy Dailey did not violate Arbuckle’s Fourth Amendment right to be free from excessive force. Therefore, Hansen has not met his burden to demonstrate that Deputy Dailey violated Arbuckle’s constitutional rights, and Deputy Dailey is thus entitled to qualified immunity.” Hansen v. Dailey, 2023 U.S. App. LEXIS 29079 (10th Cir. Nov. 2, 2023).*