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United States v. Mendez

United States District Court, D. Arizona

March 9, 2017

United States of America, Plaintiff,
Jacob Richard Mendez, Defendant.


         On November 30, 2016, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation (“R&R”) in which she recommended that Defendant Jacob Richard Mendez's Motion to Suppress Evidence (Doc. 39) be denied.[1] (Doc. 60.) Defendant filed an Objection to the R&R on December 27, 2016. (Doc. 64.) The government filed a response on February 9, 2017. (Doc. 77.) For the reasons stated herein, the Court will adopt the R&R and deny Defendant's Motion to Suppress Evidence.


         The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the Court rejects the credibility findings of the magistrate judge, a de novo hearing is required. United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).


         Neither party objected to the Magistrate Judge's findings of fact. The factual background contained in Magistrate Rateau's R&R (Doc. 60) is adopted as supplemented by the additional facts in this Order.


         Defendant's Objection presents two arguments: (1) the search of Defendant's cell phone following his arrest at the border was an unconstitutional, warrantless search; (2) the search of Defendant's cell phone was an investigatory search, not a border search.

         1. The government did not need a warrant to search Defendant's cell phone

         The government has authority to conduct routine searches and seizures at the border, without probable cause or a warrant. United States v. Flores-Montano, 541 U.S. 149, 153 (2004). Although the United States Supreme Court noted in Flores-Montano that there are “reasons that might support a requirement of some level of suspicion in [border searches involving] highly intrusive searches of the person - dignity and privacy interests of the person being searched, ” id. at 152, the Court has not defined “whether, and under what circumstances, a border search might be deemed ‘unreasonable' because of the particularly offensive manner in which it is carried out.” United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008). “The reasonableness of a search or seizure depends on the totality of the circumstances.” United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013). Applying this test, the Ninth Circuit has held that reasonable suspicion is not required for customs officials to search a laptop or other personal electronic storage device at the border where the search consists of powering on a laptop, opening folders and opening files. See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008). Reasonable suspicion is required, however, for a computer search that begins as a cursory review at the border but transforms into a forensic examination of the computer's hard drive. Cotterman, 709 F.3d at 957.

         Under this body of case law, the search of Defendant's phone was permissible under the border search exception. First, Agent Woods' search of Defendant's phone consisted of a manual inspection of the text messages and photos within the phone. (TR 11/7/16, pg. 10, lines 14-19.) Because Agent Woods' search was akin to the opening of folders and files at issue in Arnold, no reasonable suspicion was required. Agent Woods did not engage in a forensic inspection of Defendant's phone such that reasonable suspicion was required under Cotterman. 709 F.3d at 967 (distinguishing between a manual review of files on an electronic device, which does not require reasonable suspicion, and application of computer software to analyze a hard drive, which does). However, even if reasonable suspicion was required to search Defendant's cell phone, Agent Woods' search would have been supported by reasonable suspicion in light of the fact that Agent Woods knew that agents had discovered a large amount of cocaine and methamphetamine in Defendant's car and knew that drug trafficking organizations often communicate using cellular phones. (TR 11/7/16, pgs. 16-18, 36.) See Cotterman, 709 F.3d at 968 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981) for the principle that reasonable suspicion is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”).

         Defendant argues that the requirements for cell phone searches at the border have been altered by the United States Supreme Court's decision in Riley v. California, 134 S.Ct. 2473, 2482 (2014). In Riley, the Supreme Court held that a warrant is required for the search of a cell phone incident to a lawful arrest. The Court reasoned that courts “generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'” Id. at 2484 (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). In Riley, the Court identified officer security and preservation of evidence as the legitimate government interests supporting a search incident to arrest. Balancing these interests against an individual's privacy interests in a cell phone, the Court found that the governmental interests were minimal, given that digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape, and that the risk of destruction of evidence is low once law enforcement officers have secured a cell phone. Id. at 2485-86. The Supreme Court gave considerable weight to the privacy interests inherent in cell phones, stating that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form-unless the phone is.” Id. at 2491.

         Riley did not address whether a warrant is required for the manual search of a cell phone at the border, but under the balancing test set forth in Riley this Court concludes that a warrant was not required in order for Agent Woods to manually search Defendant's cell phone. The governmental interest at stake in a border search is “rooted in ‘the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.'” Cotterman, 709 F.3d at 960 (citing United States v. Ramsey, 431 U.S. 606, 616 (1977)). Border searches are generally deemed reasonable simply by virtue of the fact that they occur at the border, and individual privacy rights must be balanced against the sovereign's interests. Cotterman, 709 F.3d at 960. That balance “is qualitatively different ... than in the interior” and is “struck much more favorably to the Government.” Id. On the other side of the balancing test, the Riley Court gave weight to “the storage capacity of cell phones” and the “interrelated consequences for privacy, ” such as the collection of many distinct types of information in one place, the ability to reconstruct the owner's private life through photographs, and the potential for long-term data storage. Riley, 134 S.Ct. at 2489. Those same privacy interests were at issue in the forensic search of a laptop in Cotterman. 709 F.3d at 964 (“laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.”) The Ninth Circuit in Cotterman balanced the privacy interests associated with forensic examination of a laptop against the government's interest in a secure border and concluded that only reasonable suspicion was required to justify the forensic examination. In light of that holding, and given the similarity between the privacy interests at stake in the search of a cell phone and the forensic examination of a laptop, the Court concludes that Riley's warrant requirement does not implicitly overrule Cotterman or otherwise extend to the case at bar.[2]

         2. Although Defendant had been arrested and detained before the search was conducted, the search was a border search

         Defendant contends that a border search extends only to suspected contraband seized at the border and because agents had discovered drugs in his vehicle hours prior to searching his cell phone, the search of his cell phone was an investigatory search incident to his arrest, not a border search.[3] The Court disagrees. Agent Woods' testimony establishes that the search of Defendant's cell phone was a border search for contraband; Agent Woods testified that he searched Defendant's cell phone for “any implicating messages or evidence of the crime at hand and also of anything that might allude to or evidence of a separate criminal nature.” (TR 11/7/16, p. 11 (emphasis added).) Agent Woods further explained that “evidence of a separate criminal nature” could include child pornography or “something not as … blatant [that] might have just furthered a separate criminal investigation.” (TR 11/7/16, pgs. 11-12.) See Arnold, 533 F.3d at ...

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