©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

On March 15, 2018, the Eleventh Circuit Court of Appeals decided the United States v. Vergara[i], in which the court examined whether agents with the Department of Homeland Security violated the Fourth Amendment when they conducted a warrantless forensic search of three cell phones at a point of entry to the United States in Tampa, Florida. The relevant facts of Vergara, taken directly from the case, are as follows:

Vergara, a United States citizen, arrived at the Port of Tampa, Florida, having returned from a vacation in Cozumel, Mexico. Before his return, U.S. Customs and Border Protection (“CBP”) had identified Vergara based on his prior conviction for possession of child pornography, placing him on a list of the day’s “lookouts.” Individuals on the list are subjected to secondary screening at the border, which involves additional questioning and searching.

When Vergara arrived at the port, CBP Agent Christopher Ragan escorted him to the secondary inspection area. In Vergara’s luggage, Ragan found two cell phones, a Samsung phone and an iPhone. Vergara also had a third cell phone on his person. Ragan took the Samsung phone and began looking through the photos on it, as well as “a couple apps,” finding nothing of interest. Doc. 63 at 12. Ragan then began viewing videos, one of which depicted topless females he believed were minors. Ragan contacted Special Agent Terri Botterbusch, a criminal investigator with the Department of Homeland Security. When Botterbusch arrived, she spent a few seconds viewing the video, observing underage, topless females and the logo of a website that she knew distributed child pornography. She determined that the video was child erotica, meaning it depicted children and was sexual in nature, but it failed to meet the statutory definition of child pornography.

The agents “[did not] have the capability to forensic[ally] analyze the phone at the port of entry.” Doc. 63 at 23. Botterbusch therefore seized Vergara’s cell phones and took them to her office so “forensic agents” could conduct a full forensic examination. Id. at 31. The record does not detail the mechanics of the forensic examination, but Botterbusch testified that it involved the “extraction of data” from the cell phones and that she believed it had been completed “that afternoon.” Id. at 39. The forensic search ultimately revealed more than 100 images and videos of child pornography and erotica stored on Vergara’s phones.

Based on evidence procured from the forensic search, Vergara was arrested and charged with knowingly transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).[ii]

Vergara filed a motion to suppress the evidence obtained from the initial warrantless cell phone search and the subsequent warrantless forensic search. The district court denied the motion. Vergara was convicted after a bench trial. He then appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals.

On appeal, the issue before the court of whether the warrantless, forensic search of Vergara’s cell phones, at a point of entry to the United States (border) was reasonable under the Fourth Amendment.

Initially, Vergara argued that that the initial search of his phone and the later forensic search of his phone both required a warrant. However, on appeal, he only challenged the forensic search because that is the search that yielded the evidence used to convict him.

Vergara’s argument regarding the forensic search was based upon the Supreme Court’s holding in Riley v. California.[iii] In Riley, officers arrested the defendant for weapons violations and removed a 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 related to a gang shooting and used those photos as evidence. 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.

In considering Vergara’s argument regarding Riley, the court of appeals noted that the Supreme Court limited the holding in Riley to searches incident to arrest. The court of appeals stated

In Riley, the Supreme Court addressed the constitutionality of warrantless manual searches of cell phones following the arrest of two defendants in the United States. 134 S. Ct. at 2480-82. And the Supreme Court expressly limited its holding to the search-incident-to-arrest exception. It explained that “even though [that] exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.” Id. at 2494.[iv] [emphasis added]

The court also noted that longstanding legal principals allow warrantless searches at the border or points of entry to the United States. Regarding border searches, the court stated

Ordinarily, “where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, reasonableness . . . requires the obtaining of a judicial warrant.” Riley, 134 S. Ct. at 2482 (alterations adopted) (internal quotation marks omitted). But searches at the border, “from before the adoption of the Fourth Amendment, have been considered to be ‘reasonable’ by the single fact that the person or item in question had entered into our country from outside.” United States v. Ramsey, 431 U.S. 606, 619 (1977). Border searches “never” require probable cause or a warrantIdAnd we require reasonable suspicion at the border only “for highly intrusive searches of a person’s body such as a strip search or an x-ray examination.” United States v. Alfaro-Moncada, 607 F.3d 720, 729 (11th Cir. 2010).[v] [emphasis added]

The court then reasoned that the highest standard that would have applied to the forensic search of Vergara’s cell phones would be “reasonable suspicion,” and with that standard, no warrant would be required. Further, Vergara did not argue that reasonable suspicion was not present in his case; therefore, the court of appeals did not address whether reasonable suspicion existed in this case.

The court of appeals then affirmed the denial of the motion to suppress.



[i]  16-15059 (11th Cir. Decided March 15, 2018)

[ii] Id. at 9-11

[iii] 134 S. Ct. 2473 (2014)

[iv] Vergara at 6-7

[v] Id. at 5

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