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Warrantless Cell Phone Searches at U.S. Border OK in Florida Case

By Ceylan Pumphrey, Esq. | Last updated on

People are guaranteed certain rights in the criminal justice system. One of those rights is to be free of random searches. The Fourth Amendment requires police to have probable cause in order to search an individual, which usually must be evidenced through a warrant. There are certain circumstances, however, where a search warrant is not necessary before conducting a search. According to the 11th Circuit, the warrantless search of a Florida man's cell phone didn't violate the Fourth Amendment.

The Facts of the Case

Hernando Javier Vergara's luggage was searched by a Customs and Border Protection officer when he was returning home to Tampa Florida after he had gone on a cruise in Mexico. Vergara had three cell phones with him and the officer asked him to turn one of them on. While conducting a cursory search, the officer saw a video of two female minors who were topless. At that point, the officer called investigators from the Department of Homeland Security, who took all three phones to conduct forensic analysis.

During the analysis, it was discovered that two of the phones had more than one hundred videos and images that were determined to be child pornography. Vergara was subsequently indicted by the grand jury, and Vergara filed a motion to suppress the evidence based on the argument that evidence was obtained without a search warrant. The motion was denied, and Vergara was found guilty at a bench trial.

The Reason for the Court's Decision

Although divided, the 11th Circuit upheld Vergara's conviction. The majority pointed out that Vergara argued that the U.S. Supreme Court's decision in Riley v. California should be applied to his appeal. For reference, in that case the U.S. Supreme Court concluded that while a search incident to arrest is permitted without a warrant, that exception doesn't apply to cell phone searches.

The majority disagreed stating that "[t]he forensic searches of Vergara's cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause." The judge writing for the majority also added that "[t]he Supreme Court has consistently held that border searches are not subject to the probable cause and warrant requirements of the Fourth Amendment."

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