United States v. Maria Molina-Isidoro
Opinion
*289
After discovering kilos of meth in the suitcase Maria Isabel Molina-Isidoro was carrying across the border, customs agents looked at a couple of apps on her cell phone. Molina argues that the evidence found during this warrantless search of her phone should be suppressed. Along with amici, she invites the court to announce general rules concerning the application of the government's historically broad border-search authority to modern technology for which the Supreme Court has recognized increased privacy interests.
See
Riley v. California
, --- U.S. ----,
I.
Molina attempted to enter the United States at a border crossing in El Paso. Customs and Border Protection officers "detected anomalies" while x-raying her suitcase. When they questioned Molina, she acknowledged owning the suitcase but claimed that it only contained clothing.
At a secondary inspection area, in response to questions about her travels, Molina said she had delivered clothing to her brother in Juarez, Mexico and would be flying home to Tijuana, Mexico from El Paso. At that point, an officer opened Molina's suitcase and noticed a modification. After rescanning the suitcase, the officers located an "anomaly ... covered by electrical tape." That anomaly was a hidden compartment, which held 4.32 kilograms of a white crystal substance. A drug-sniffing dog alerted officers to the presence of narcotics, and the crystal substance field-tested positive for methamphetamine. Later laboratory tests confirmed that result.
Agents from the Department of Homeland Security soon arrived on the scene. Molina could not explain how the drugs made their way into her suitcase, though she admitted that no one could have placed them there without her knowledge. Then Molina again recounted her recent travels. She claimed to have taken a taxi from El Paso to Juarez to visit her brother. But she could not remember his address. She reiterated that she was returning to El Paso to fly home to Tijuana. But she had not yet purchased a ticket. When the agents confronted Molina about why she was carrying so much personal clothing for such a short trip, she remained silent. And when the agents told Molina that her story made little sense, she ended the interview and requested a lawyer.
Either at that point, or during the questioning, agents searched Molina's phone, looking at Uber and WhatsApp. 1 They did not ask for, and Molina did not provide, consent for that search. The agents found the following (paraphrased) conversation on Molina's WhatsApp:
*290 Molina advised RAUL that she was headed to El Paso, and requested [that] RAUL ... send her the information for the Uber. MOLINA advise[d] RAUL that she had arrived in El Paso. RAUL responded that he sent her the information for the Uber. RAUL sent a picture [o]f a credit card, front and back, and told MOLINA to use that credit card information to pay for [the] Uber. RAUL sent information regarding a hotel located in Juarez, Mexico. RAUL directed MOLINA to Hotel Suites in Colonia Playas, Room #10, and advised MOLINA that the stuff [was] located there. MOLINA advised RAUL that she [had] arrived [at] the room but no one was there. RAUL stated he w[ould] get a hold of them. MOLINA then responded that the guy [had been] asleep [but had now] opened the door. RAUL sent another picture of a Southwest Airlines flight itinerary. The itinerary listed MOLINA as the passenger o[n] a flight departing El Paso at 5:15 P.M. with a final destination of Ft. Lauderdale, Florida. MOLINA advised RAUL that she got the stuff and was headed back to El Paso.
After the search, the government kept Molina's phone but did not conduct a more intrusive forensic search of it.
A grand jury charged Molina with one count of importing methamphetamine and one count of possessing methamphetamine with the intent to distribute. She moved to suppress the evidence obtained during the cell phone search. The district court denied the motion to suppress, concluding that Riley v. California did not extend to the border-search context. It also observed that the most demanding requirement a court has required for any type of border search is reasonable suspicion, which existed for the search of Molina's phone.
The district court then held a stipulated bench trial as Molina wanted to preserve her right to appeal the denial of the suppression motion. Molina was found guilty on both counts and sentenced to five years in prison.
II.
We do not decide the Fourth Amendment question. The fruits of a search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.
United States v. Curtis
,
The agents searching Molina's phone reasonably relied on the longstanding and expansive authority of the government to search persons and their effects at the border. The border-search doctrine has roots going back to our founding era.
See
United States v. Flores-Montano
,
*291
The location of a search at the border affects both sides of the reasonableness calculus that governs the Fourth Amendment.
United States v. Montoya de Hernandez
,
The Supreme Court has thus allowed warrantless searches of mail and gas tanks entering the United States.
United States v. Ramsey
,
As to the examination of her cell phone that she does contest, the agents reasonably relied on this broad border-search authority. In terms of the level of suspicion, they had probable cause to support the search, which is the highest standard the Fourth Amendment requires even for searches occurring in the interior.
See
Illinois v. Gates
,
The existence of probable cause means the only way Molina can show the search was unlawful is if a warrant was required. But as we have already explained, no court has ever required a warrant to support searches, even nonroutine ones, that occur at the border. Although our court had not addressed border searches of an electronic device at the time of this search, a number of circuits had and none had required a warrant.
See, e.g.
,
United States v. Stewart
,
Molina argues that
Riley
changes all that. Although most circuits to decide the issue had applied the search-incident-to-arrest doctrine to cell phones, the Supreme Court took a different view.
That caveat means it was reasonable for the agents to continue to rely on the robust body of pre-
Riley
caselaw that allowed warrantless border searches of computers and cell phones. What is more, not a single court addressing border searches of computers since
Riley
has read it to require a warrant.
See, e.g.
,
United States v. Escarcega
,
*293
The bottom line is that only two of the many federal cases addressing border searches of electronic devices have ever required any level of suspicion. They both required only reasonable suspicion and that was for the more intrusive forensic search.
See
Cotterman
,
* * *
Because the officers acted in good faith in searching the phone, the judgement of the district court is AFFIRMED.
GREGG COSTA, Circuit Judge, specially concurring:
Courts should resist the temptation to frequently rest their Fourth Amendment decisions on the safe haven of the good-faith exception, lest the courts fail to give law enforcement and the public the guidance needed to regulate their frequent interactions.
Davis v. United States
,
Also counseling against deciding the constitutional issue is the risk of announcing general principles that would fix precedent in a rapidly changing area. The Supreme Court is currently considering yet another case that addresses how to apply longstanding principles of the Fourth Amendment-this time the "third-party doctrine"-to new communications technology.
United States v. Carpenter
,
Some or all of these developments may influence the ultimate determination of how the government's venerable border-search authority applies to electronic devices. Although the good-faith exception presents an easy question in light of existing caselaw, deciding the standard that applies to border searches of digital devices is not so clear cut. In declining to apply to cell phones the search-incident-to-arrest exception to the warrant requirement,
Riley v. California
focused on the inapplicability of that doctrine's rationales-the protection of police officers and preventing the destruction of evidence-to phone searches at the scene of an arrest. --- U.S. ----,
But if the expansiveness of cell phones' memory is what has led the Supreme Court to provide these devices increased protection in some Fourth Amendment areas, the best argument for carving them
*295
out of the government's traditional border-search authority is the physical limitations of their capacity. Most contraband, the drugs in this case being an example, cannot be stored within the data of a cell phone.
3
Detection of such contraband is the strongest historic rationale for the border-search exception.
United States v. Montoya de Hernandez,
As the district court recognized, this detection-of-contraband justification would not seem to apply to an electronic search of a cell phone or computer.
5
But other considerations may still support giving
*296
government agents more leeway in searching technology at the border as opposed to inside the country. One is that the "expectation of privacy [is] less at the border than in the interior."
Montoya de Hernandez
,
There may a clue to resolving this dilemma in the earliest case that gets cited for the constitutionality of border searches; it also happens to be the first Supreme Court case addressing any aspect of the Fourth Amendment. 6 Boyd v. United States draws a sharp distinction between searches for contraband and those for evidence that may reveal the importation of contraband. In finding unconstitutional a revenue law that allowed subpoenas for a customs invoice, Boyd observes that:
The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo .
The contours of the border-search doctrine in this new area-what level of suspicion, if any, is required and whether a warrant is ever required-may well turn on whether the interest at the border in general crime fighting and national security, which phone searches can further, is as weighty as the traditional justification of seizing contraband, which an electronic search is not likely to accomplish. Because the Supreme Court has not said much about this alternative justification the government cites, future developments may provide guidance. That counsels for not freezing our approach in place when we don't have to.
Judge Haynes concurs in the judgment only.
WhatsApp is an internet-based messaging service that permits users to exchange messages, make phone calls, and send images and videos.
In addition to arguing that the reasoning of
Riley
should result in a warrant requirement for border searches of cell phones, Molina argues that a warrant was required because after the discovery of the meth the incident transformed from a border encounter into a law enforcement investigation. But she cites no case making this distinction and there is caselaw rejecting it.
See, e.g.,
Ickes,
A third case,
United States v. Kim
, found the search of a laptop computer using forensic software for the purpose of gathering evidence in a preexisting investigation supported by "so little suspicion of ongoing or imminent criminal activity" and so disconnected from the considerations underpinning the government's border-search authority and "also the border itself" that it was unreasonable.
U.S. Dep't of Homeland Sec., Civil Rights/civil Liberties Impact Assessment: Border Searches of Electronic Devices 1 (2011), https://www.dhs.gov/sites/default/files/publications/Redacted% 20Report.pdf (noting that in 2010 an average of nearly 30 million travelers entered the United States each month).
Under the new policy, customs officers are permitted to conduct "basic" searches of digital devices at the border without suspicion. CBP Directive No. 3340-049A, supra , at 4. A basic search includes the examination of information kept on the device itself that is accessible without a wired or wireless connection. Id. at 4-5. By contrast, a customs officer can conduct an "advanced" search, in which external equipment is connected to the device, to review, copy, or analyze the contents of that device only with reasonable suspicion of activity that violates the customs laws or poses a threat to national security. Id. at 5.
One type of contraband that can be stored within the data of a cell phone or computer is child pornography.
See, e.g.
,
United States v. Cotterman
,
Also notable is that the statute, though cited as part of the pedigree supporting suspicionless border searches, only gives collectors the power to enter ships "in which they
shall have reason to suspect
any goods, wares or merchandise subject to duty shall be concealed." Act of July 31, 1789,
To the extent that drugs or other contraband can be hidden physically in a phone or computer, a physical search or x-ray of the device is seemingly no different from the search of any other object, such as luggage. But that would not involve access to the "broad array of private information" that a manual or forensic search of the phone's data would reveal, which is what heightens the privacy interest for electronic devices.
Riley
,
Wayne LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 1.1(b) ;
see also
Carroll
,
Hayden
rejects the "mere evidence" rule that had long prevented the government from using warrants to obtain evidence that was not itself the instrumentality of a crime or contraband.
See
Andresen v. Maryland
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Maria Isabel MOLINA-ISIDORO, Defendant-Appellant
- Cited By
- 22 cases
- Status
- Published