By Maura Dolan, Staff Writer, AUG. 16, 2019
SAN FRANCISCO — Border officials may examine a person’s cellphone for contraband, such as pornography, but may not search it to determine whether someone has committed a crime, a federal appeals court decided Friday.
The unanimous ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals is expected to limit the ability of border agents in California and Arizona to search cellphones in the future. The decision affects the nine Western states in the 9th Circuit.
The decision also overturned the conviction of Miguel Angel Cano for cocaine importation because border agents searched his cellphone extensively in 2016 for evidence of drug crimes.
“Cellphone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband,” 9th Circuit Judge Jay S. Bybee, an appointee of President George W. Bush, wrote for the court.
The court cited past rulings that said border searches must be conducted to “enforce importation laws,” not for “general law enforcement purposes.”
Cano was arrested on suspicion of carrying cocaine as he attempted to cross into the United States from Mexico at the San Ysidro Port of Entry. A narcotic-detecting dog alerted officials to Cano’s spare tire, which contained 14 vacuum-sealed packages of cocaine.
After Cano’s arrest, an official from U.S. Customs and Border Protection seized his phone, and agents searched it manually and then with software that accessed all text messages, contacts, call logs, media and application data.
Cano’s lawyer sought at trial to suppress the information obtained from the extensive examination, but a district judge ruled the search was permissible under a border exception to the 4th Amendment’s requirement of warrants.
In overturning Cano’s conviction, the 9th Circuit said agents from the Department of Homeland Security who searched the phone had reason to suspect that it might contain evidence of drug crimes, but there was no evidence that “the digital data in the phone contained contraband.”
“No one contests that a border official could, consistent with the 4th Amendment, examine the physical body of a cellphone to see if the phone itself is contraband — because, for example, it is a pirated copy of a patented U.S. phone — or if the phone itself presents a physical threat to officers,” Bybee wrote.
But “border officials have no general authority to search for crime,” he added.
In Cano’s case, the court added, officials could have obtained a warrant before doing a forensic search because they already had Cano in custody.
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