©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)
On March 1, 2018, the Fifth Circuit Court of Appeals of decided the United States v. Molina-Isidoro[i], in which the court examined whether agents with the Department of Homeland Security violated the Fourth Amendment when they conducted a warrantless search of a cell phone at a border crossing to the United States in El Paso, Texas. Part One of this series examined the Eleventh Circuit’s ruling on the warrantless border search of a cell phone. In this case, the Fifth Circuit examined a similar issue but reached its conclusion by use of a different rationale. The relevant facts of Molina, taken directly from the case, are as follows:
Molina attempted to enter the United States at a border crossing in El Paso. Customs and Border Protection officers “detected anomalies” while x-raying her suitcase. When they questioned Molina, she acknowledged owning the suitcase but claimed that it only contained clothing.
At a secondary inspection area, in response to questions about her travels, Molina said she had delivered clothing to her brother in Juarez, Mexico and would be flying home to Tijuana, Mexico from El Paso. At that point, an officer opened Molina’s suitcase and noticed a modification. After rescanning the suitcase, the officers located an “anomaly . . . covered by electrical tape.” That anomaly was a hidden compartment, which held 4.32 kilograms of a white crystal substance. A drug-sniffing dog alerted officers to the presence of narcotics, and the crystal substance field-tested positive for methamphetamine. Later laboratory tests confirmed that result.
Agents from the Department of Homeland Security soon arrived on the scene. Molina could not explain how the drugs made their way into her suitcase, though she admitted that no one could have placed them there without her knowledge. Then Molina again recounted her recent travels. She claimed to have taken a taxi from El Paso to Juarez to visit her brother. But she could not remember his address. She reiterated that she was returning to El Paso to fly home to Tijuana. But she had not yet purchased a ticket. When the agents confronted Molina about why she was carrying so much personal clothing for such a short trip, she remained silent. And when the agents told Molina that her story made little sense, she ended the interview and requested a lawyer.
Either at that point, or during the questioning, agents searched Molina’s phone, looking at Uber and WhatsApp. They did not ask for, and Molina did not provide, consent for that search.[ii]
The search of the cell phone revealed a text conversation between Molina and a male named Raul on the WhatsApp app. This conversation contained incriminating information. The agents retained Molina’s phone for evidence but did not conduct a more intrusive or forensic search of the phone.
Molina was indicted for federal drug offenses. She filed a motion to suppress the evidence obtained in the search of her phone, and the district court denied the motion. The district court then conducted a bench trial in which the government introduced evidence found in the search of the phone. Molina was convicted by the district court. She then filed an appeal of the denial of her motion to suppress to the Fifth Circuit Court of Appeals.
The Fourth Amendment issue in this case was whether the agents violated Molina’s rights under the Fourth Amendment when then searched her phone text messages in an app without a warrant.
Molina relied upon the Supreme Court’s decision Riley v. California[iii] to support her contention that the search of her cell phone required a search warrant. In Riley, officers arrested the defendant for weapons violations and removed cell phone from his pocket in the search incident to arrest. The officer looked through the phone and saw the repeated use of gang terminology. The officer turned the phone over to detectives at the police station the detective continued the warrantless search of the phone. The detective discovered photos and used them to charge Riley in a gang related shooting. The trial court denied the motion to suppress the evidence obtained in the warrantless search of the cell phone. Ultimately, the Supreme Court held that the search incident to arrest exception to the warrant requirement did not apply to cell phones because the search of a cell phone did not further the purposes of a search incident to arrest and because of the immense storage capacity of cell phones.
The Fifth Circuit, rather than deciding whether the search was legal like the Eleventh Circuit did in Part One of this series, upheld the search based on the “good faith exception” to the exclusionary rule. The court stated
We do not decide the Fourth Amendment question. The fruits of a search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment. United States v. Curtis, 635 F.3d 704, 713 (5th Cir. 2011) (citing United States v. Leon, 468 U.S. 897, 918 (1984)). This is the so-called “good faith” exception to the exclusionary rule. See Leon, 468 U.S. at 924-25 (making clear that courts may apply the good-faith exception without deciding the underlying constitutional issue). Even when the search is held unconstitutional, suppressing evidence is not appropriate if the officers acted reasonably in light of the law existing at the time of the search. Curtis, 635 F.3d at 713-14. In such circumstances, the cost of suppression—excluding the evidence from the truth-finding process—outweighs the deterrent effect suppression may have on police misconduct. See Davis v. United States, 564 U.S. 229, 237-38 (2011).[iv] [emphasis added]
The court of appeals then stated that the agents relied on longstanding legal authority that a warrant is not required to search persons and their belongings at the border. This is due to the government interest in preventing the entry of contraband into the United States. The court the stated
The Supreme Court has thus allowed warrantless searches of mail and gas tanks entering the United States. United States v. Ramsey, 431 U.S. 606, 624-25 (1977) (mail); Flores-Montano, 541 U.S. at 155-56 (gas tanks). It permitted even the 16-hour warrantless detention of a woman at the border whom customs officials reasonably suspected to be smuggling narcotics in her alimentary canal. Montoya de Hernandez, 473 U.S. at 535, 541, 544. We have held that officials at the border may cut open the lining of suitcases without any suspicion, United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978), and that with reasonable suspicion they may strip search suspected drug smugglers and drill into the body of a trailer, United States v. Afanador, 567 F.2d 1325, 1329 (5th Cir. 1978) (strip search); United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling into trailer). These cases establish that routine border searches may be conducted without any suspicion. See id. at 367. So-called “nonroutine” searches need only reasonable suspicion, not the higher threshold of probable cause. Id.; United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); United States v. Saboonchi, 48 F. Supp. 3d 815, 819 (D. Md. 2014) (“Defendant has not cited to a single case holding that anything more than reasonable suspicion was required to perform a search of even the most invasive kind at the international border, and I have found none.”); see alsoWayne LeFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.5(a) n.11, 22. For border searches both routine and not, no case has required a warrant. It is this border-search precedent that allowed the scanning and searching of Molina’s suitcase during which the meth was located, a search she rightly does not even challenge.[v] [emphasis added]
Thus, based upon this extensive body of law, the court stated that the agents in Molina’s case had a good-faith belief that they could conduct the search without a warrant. The court even noted that the agents in Molina’s case had probable cause to search the phone, which is a higher legal standard than required in non-routine (more intrusive) searches at the border.
The court also observed that no court that has addressed this same issue since Riley, has required a search warrant for the warrantless search of a cell phone at the border or a point of entry into the United States. Further, the court discussed that the leading treatise on Fourth Amendment law stated
Also noteworthy is that the leading Fourth Amendment treatise continues to include searches of “a laptop or other personal electronic storage devices,” among the types of border searches that may be made “without first obtaining a search warrant and without establishing probable cause.” LeFave, supra, § 10.5(a) (quoting United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008)).[vi]
Thus, in light of the above discussion, the Fifth Circuit held that it was reasonable for the officers to believe the search legal in light of the existing law at the time of the search; therefore, the court applied the “good faith exception” to the exclusionary rule and affirmed the denial of the motion to suppress, without rendering an opinion as to whether the search was legal under the Fourth Amendment, in light of Riley.
[i] No. 17-50070 (5th Cir. Decided March 1, 2018)
[ii] Id. at 2-3
[iii] 134 S. Ct. 2473 (2014)
[iv] Id. at 4
[v] Id. at 6
[vi] Id. at 7