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Did the 9th Cir. Just Change the Rules of Gadget Searches at Borders?

By Mark Wilson, Esq. | Last updated on

After he appeared suspicious at a border checkpoint in California, border patrol agents searched Chad Camou's car, in which they found Alejandro Martinez-Ramirez, an undocumented immigrant. But this case isn't even about Martinez-Ramirez.

Nope. It's about child pornography.

The border patrol agents took Camou's cell phone, then started rifling through it an hour and 20 minutes after his arrest. The agent was looking for evidence of smuggling, but found child pornography instead.

Incident to Arrest? Try Again

The government's A-side argument was that the search of Camou's cell phone was a valid search incident to arrest, an exception to the warrant requirement. Judge Harry Pregerson, writing for the court, said the government's search wasn't a valid search incident to arrest because it was not "spatially and temporally incident to the arrest." The court had previously said that waiting an hour was too long, meaning that waiting an hour and 20 minutes was definitely too long.

This wasn't a valid "cell phone" search either. Though Riley v. California, the cell phone search case, cautioned that there might still be exigent circumstances related to cell phones, those have to be looked at on a case-by-case basis. It will no longer do to claim that cell phones, in the abstract, present unique dangers like the ability of remote wiping. That is, however, exactly what the government did in this case. While the government argued that things like "the volatile nature of call logs and other cell phone information with the passing of time" were exigent, Pregerson correctly pointed out that Riley shuts down those generalized exigent circumstances claims.

A Limitation on Border Searches

Was it a valid automobile search? No, it wasn't. The purpose of the automobile search exception is to prevent a suspect from destroying evidence located in the small confines of a car's passenger compartment. But when an hour and a half has gone by, and the suspect hasn't been in the car for that same amount of time, it's hard to say that the need still exists. In fact, you might even say the need doesn't exist at all.

Even if there could be an argument for an automobile search, Riley injected a dose of reality into cell phone searches by emphasizing that a cell phone isn't a "container" for purposes of searches that allow entry into containers.

This argument is the most important in the whole opinion. Border patrols routinely search laptops at borders for no other reason than they can. Pregerson's opinion provides support for the proposition that searching the contents of a phone -- or a laptop (both are somewhat synonymous at this point) -- without any articulable suspicion exceeds the scope of a border search.

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