Officer’s Warrantless Smartphone Search Permitted by Border Search Doctrine

by | March 27, 2018

United States v. Vergara, (11th Cir. 2018)

Hernando Javier Vergara docked at Tampa, Fla., after a cruise to Mexico. As a convicted sex offender, Vergara was on a watch list. When he came through the Customs and Border Protection station, an agent asked Vergara to turn on his three mobile phones. The agent found a video of two topless female children on one phone. The agent called for Homeland Security investigators to conduct a secondary inspection.

A Homeland Security investigator seized two of the phones and took them to another location for a full forensic search. That search uncovered more than 100 images and videos of child pornography on the phones. Vergara was charged with transportation and possession of child pornography. He asked the trial court to suppress the child pornography found during the search, arguing the agents needed a warrant for the forensic examination. The trial court denied his motion and he was convicted.

The appellate court held that the border search doctrine allowed a warrantless search of Vergara’s phones, including the later forensic search. Citing the U.S. Supreme Court ruling in United States v. Ramsey (431 U.S. 606 (1977)), the court noted that “Border searches ‘never’ require probable cause or a warrant.” More intrusive border searches, such as strip searches or x-ray scans, require only reasonable suspicion.

Vergara argued that the Supreme Court’s holding in Riley v. California (134 S.Ct. 2473 (2014)) compelled a different result. In Riley, the Court held that a search of a cell phone cannot be justified by a lawful arrest because of the significant privacy interests that a person holds in the contents of a smartphone. Though the lone dissenting judge in Vergara’s case opined that the forensic search should have required a warrant, she admitted that she could, “at best, attempt to predict how the Supreme Court” would apply the border search doctrine to a search of a smartphone. She observed that the border search doctrine is traditionally based on the need to exclude physical contraband, such as diseases, narcotics, and explosives, from entering the country.

For now, the applicability of the border search to smartphones applies. Considering that courts have long upheld digital searches of laptops, storage media and tablets at the border, perhaps that will remain the rule. Notwithstanding, the Supreme Court acknowledged in Riley that smartphone data is “qualitatively different” from other electronics because it may reveal travel history and intimate details about a person’s life, such as addiction, religious practices, pregnancy, personal finances, and romance. As the “gulf between physical practicability and digital capacity … continue to widen,” don’t be surprised if the Supreme Court reconsiders the intersection of smartphone searches and the border search doctrine.

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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