Border Search Doctrine Extended to Search of Cell Phones

by | June 27, 2023

United States v. Castillo, 2023 WL 4056492 (5th Cir. 2023)

Alvaro Castillo crossed the international bridge into Presidio, Texas at around midnight. He was in a recreational vehicle towing a passenger car. As is standard practice for a large vehicle crossing the border at night, Castillo was directed to a secondary inspection point. Castillo told the agents he had nothing to declare. A search of Castillo’s RV revealed a .357 revolver taped between two frying pans that had been wrapped in packing foam and taped inside the oven. The officer also found ammunition for a .357 inside a pressure cooker that had been taped shut, as well as marijuana inside of luggage. So much for “nothing to declare.”

Castillo admitted to owning the contraband. Agents placed him in a holding cell. Upon request, Castillo provided the passcode to his cell phone to a Homeland Security Investigations special agent. The agent quickly scanned through various apps and found what he believed to be child pornography in the photo collection on the phone. Other agents conducted a more intrusive forensic search of the phone and some other electronic devices owned by Castillo. Those searches produced additional child pornography images.

Castillo was convicted and sentenced to 60 years imprisonment on six charges involving child pornography. Citing the Supreme Court’s view in Riley v. California (573 U.S. 373 (2014)) that searches of modern devices like cell phones can be unusually intrusive and are subject to particular scrutiny, Castillo sought suppression of the evidence found in the cell phone search.

In Riley v. California, David Riley was convicted of attempted murder, shooting at a vehicle and assault. He was arrested following a traffic stop based on expired registration. Officers found guns connected to a gang shooting and Riley’s mobile phone was seized incident to arrest. Officers found data entries with the notation “CK,” suggesting the gang moniker of “Crip Killers.” Officers also viewed photos of Riley involved in gang activity. Additionally, the cell phone call log showed Riley’s phone had placed a call near the time and location of the shooting.

The appellate court held no reasonable suspicion is necessary to conduct the sort of routine manual cell phone search at the border such as the search of Castillo’s phone.

The Court acknowledged a cell phone can hold valuable evidence vital to an investigation and prosecution. However, the vast storage capacity of a smart phone prompted the Court to distinguish between searching an arrestee’s wallet, for example, and the phone’s digital data that might amount to millions of pages of documentation potentially exposing the owner’s entire personal history, ranging from intimate medical information to GPS location of recent movements. Chief Justice Roberts characterized the information on a cell phone as “a digital record of nearly every aspect of their lives—from the mundane to the intimate.”

In Riley v. California, the Supreme Court held that the search-incident-to-arrest doctrine does not extend to a warrantless search of an arrestee’s mobile device, though the Court said nothing about border searches. The 5th Circuit had yet to consider whether the border search doctrine permitted searches of mobile phones without consent and without any suspicion.

The appellate court held no reasonable suspicion is necessary to conduct the sort of routine manual cell phone search at the border such as the search of Castillo’s phone. The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained” for a search (United States v. Ramsey, 431 U.S. 606 (1977)). The border search doctrine permits routine inspections and searches of individuals or conveyances seeking to cross international borders without any particularized suspicion of wrongdoing.

The court affirmed Castillo’s conviction and held the Riley opinion does not require either a warrant or reasonable suspicion for a search of a mobile phone at the border. However, the court limited its holding to the “manual” search of scrolling through the phone. The court did not need to consider whether the more intensive and intrusive forensic examination of the phone was proper under the border search doctrine. The court noted, “It’s hard to see how would not justify the subsequent forensic searches for additional evidence of child pornography.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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