“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judges Mark Bennett, Ryan Nelson, Bridget Bade, and Lawrence VanDyke argued that an en banc panel of Ninth Circuit judges should reconsider and reverse a 3-judge court decision and rule that border agents can seize and completely search the contents of any cell phone of someone coming across the border, without a warrant and even without reasonable suspicion. The full Ninth Circuit rejected the petition for en banc review in the September 2020 ruling in United States v Cano.
Miguel Cano was convicted of smuggling drugs across the US-Mexico border. After he was arrested at the border, a border agent seized and conducted a brief “manual” search of his cell phone, looking only at his log of calls and text messages. After interrogation of Cano, but without obtaining a warrant even though Cano and his phone were in custody, the agent conducted a second manual search and this time wrote down some of the phone numbers on the phone. The Agent then conducted a “forensic” search of the phone that allowed him to download data from the phone, such as contacts and more complete call logs. Although no contraband was found on the phone, the information was used in prosecuting Cano, such as refuting his claim that he had called carpeting stores in San Diego as part of his work. The trial judge rejected Cano’s motion to suppress the cell phone evidence.
On appeal, in a unanimous decision written by conservative George W Bush nominee Jay Bybee, the Ninth Circuit reversed the conviction and sent the case back for a new trial, at which some of the cell phone evidence would be excluded. Because of recognized exceptions to search and seizure doctrine relating to border searches, Bybee explained, it was permissible to initially seize Cano’s cell phone and conduct a manual search, without a warrant or reasonable suspicion. After that, however, Bybee wrote that a further manual and forensic search of Cano’s phone without a warrant would be permissible only if the agents had reasonable suspicion that the phone contained contraband, which they did not. Since both Cano and the phone were in custody, there was no reason that the agents could not simply have obtained a warrant to search for additional evidence to use against him.
Although a majority of the Ninth Circuit denied rehearing of the case without explanation, Trump judge Bennett filed a harsh dissent, joined by Trump judges Nelson, Bade and Vandyke plus a few others. Bennett asserted that Bybee’s decision was extremely broad, and that border agents are now forever barred from forensically searching a traveler’s cell phone without a warrant unless they suspect contraband, even if they had reasonable suspicion that the phone “contains evidence of terrorist acts the traveler is about to commit” in this country. Bennett maintained that according to Supreme Court precedent, border agents have “plenary” authority to search anyone coming into the US for any reason, except for “strip, body cavity, or involuntary x-ray searches.” While he suggested that this meant that forensic searches of electronic devices like cell phones were always permissible, he argued that at the very most, based on the previous Ninth Circuit decision in the Cotterman case, such searches are permissible as long as there is “reasonable suspicion” of any “criminal activity,” which existed in the Cano case.
Although written long before the rehearing dissent, Bybee’s opinion made clear that Bennett’s extreme view of border agents’ authority to search and routinely invade the privacy of travelers is wrong as a matter of law. Judge Bybee explained that the Supreme Court has long held that although routine customs and similar inspections can be conducted at the border as the government determines, a “more intrusive, nonroutine search” must be supported by “reasonable suspicion.” Suspicionless searches at the border, he continued, must be conducted by “customs and immigration officials” and not law enforcement agents, and must be conducted to “enforce importation laws” rather than for “general law enforcement purposes
Judge Bybee went on to explain that the Cotterman case permits searches of cellphones and similar devices when there is reasonable evidence of contraband such as child pornography, as occurred in that case, and does not authorize a “warrantless search” for evidence of any past “border-related crimes” as in the Cano case. Bybee noted that the detection of contraband is the “strongest historic rationale for the border-search exception” and “every border-search case” decided by the Supreme Court has involved searches to locate “items being smuggled rather than evidence.”
Of course, there is clearly no valid basis for Bennett’s terrorist hypothetical, given the limitations of Bybee’s decision to its facts.
Fortunately, the extreme views of Trump judges Bennett, Nelson, Bade, and VanDyke on border searches were rejected. If they had been accepted, it would mean that anyone coming into the US could be searched for any reason at all, and even intrusive searches of cell phones and other devices would be routinely permitted without a warrant.