Metropolitan News-Enterprise


Thursday, September 3, 2020


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Six Judges Balk at No En Banc Review of Border-Search Ruling

Judge Mark J. Bennett Writes Dissent, Says Full Court Should Examine Holding That Searches of Cellphones at Border May Only Be Conducted to Look for Child Pornography


By a MetNews Staff Writer


Six judges of the Ninth U.S. Circuit Court of Appeals yesterday expressed dismay that their colleagues have opted not to rehear, en banc, an appeal that was acted upon last year by a three-judge panel which barred forensic searches of cellphones at the border without a warrant unless there is a reasonable suspicion that the devices hold “digital contraband,” such as child pornography.

While authorizing warrantless manual inspections, the opinion specified that the sole purpose must be to look for such contraband.

Judge Mark J. Bennett wrote a dissent to the order denying en banc review. He was joined by Judges Bridget Shelton Bade, Consuelo M. Callahan, Ryan D. Nelson, Milan D. Smith Jr., and Lawrence VanDyke.

Bennett protested:

“[S]ince effectively the only contraband a cell phone can contain is child pornography, the only permissible forensic search at the border is one for child pornography. Even then, only if agents have reasonable suspicion the phone contains child pornography. The government has referred to the panel’s decision as an ‘outlier.’ It is that, but far more. The Supreme Court has told us that a border search is reasonable simply because it takes place at the border. The Court has also instructed that the sovereign’s power at the border is at its ‘zenith.’ The limits the panel placed on border searches ignores the Court’s teachings and, as a result, makes our borders far more porous and far less safe.”

Effect of Decision

The judge continued:

“Border officials in our circuit are now constitutionally barred from forensically searching a traveler’s cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler, evidence of other border related crimes; or evidence of non-child pornography contraband. This is the sovereign power at its nadir, not its zenith.

“We should have taken this case en banc to correct the panel’s errors, and I respectfully dissent from our failure to do so.”

He noted that the three-judge panel’s decision last year has “already been rejected by the Fourth and Tenth Circuits, with others likely to follow.”

Bennett went on to say:

“The panel’s decision contradicts the history of the border search exception and the Supreme Court’s teachings as to the almost plenary nature of the sovereign’s authority at the border. The decision also makes a judgment untethered from any Fourth Amendment reasonableness calculus—drawing an unprecedented at-the-border distinction between reasonable suspicion of border-related crimes in general (not enough) and reasonable suspicion of the presence of contraband (enough). This is the exact type of distinction (if it is to be drawn) that must be left to the political branches. And finally, the decision rewrites the good faith exception, penalizing border officers for incorrectly divining future courts’ views on presently clear binding appellate precedent.”

Bybee’s Opinion

The April 10, 2019 opinion by then-Judge (now Senior Judge) Jay S. Bybee said:

“[W]e conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion…. ‘[R]easonable suspicion’ in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. In this case, the officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search.”

The right of officials to search for contraband at the border, he said, does not extend to searching for evidence.

The appellant, Miguel Cano, a resident of the San Fernando Valley, was returning to California from Tijuana on July 25, 2016 when he was stopped by border guards at the San Ysidro Port of Entry in San Diego. A dog detected contraband in his spare tire; officials dismounted the tire and found 30.93 lbs. of cocaine in it; Cano was arrested.

He told border agents that he was temporarily living with his cousin in Tijuana while looking for work in San Diego as a carpet installer because jobs were sparce in Los Angeles, and that he was on his way to his home in Los Angeles to pick up tools. His cell phone was manually inspected, then subjected to a forensic search, entailing downloading of data from the device.

The search revealed that he had placed no calls to carpet stores in San Diego.

Reasonable Suspicion Lacking

Bybee wrote that although customs agents “had reason to suspect that Cano’s phone would contain evidence leading to additional drugs, the record does not give rise to any objectively reasonable suspicion that the digital data in the phone contained contraband.”

He continued:

“Absent reasonable suspicion, the border search exception did not authorize the agents to conduct a warrantless forensic search of Cano’s phone, and evidence obtained through a forensic search should be suppressed.”

Rejecting the government’s argument that the good-faith exception to a warrant requirement applied, Bybee said:

“We understand that border officials might have thought that their actions were reasonable, and we recognize that border officials have to make in-the-moment decisions about how to conduct their business—whether or not they have written guidance from the courts. But…the good faith exception to the exclusionary rule applies only when the officials have relied on ‘binding appellate precedent’….This is a rapidly developing area, not an  area of settled law.”

Bybee was joined by Circuit Judge Susan P. Graber and District Court Judge M. Douglas Harpool of the Western District of Missouri, sitting by designation.

Bybee was appointed by Republican President George W. Bush; Graber was placed on the bench by Democratic President Bill Clinton and Harpool received his judgeship from Democratic President Barack Obama.

All six of those dissenting from the denial of en banc review were appointees of a Republican President—Bennett, Bade, Nelson and VanDyke chosen by President Donald Trump and Callahan and Smith by President George W. Bush.

 The case is United States v. Cano, 17-50151.


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