United States v. Maria Molina-Isidoro , 884 F.3d 287 ( 2018 )


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  •      Case: 17-50070       Document: 00514369559        Page: 1   Date Filed: 03/01/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-50070                           Fifth Circuit
    FILED
    March 1, 2018
    UNITED STATES OF AMERICA,                                              Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    MARIA ISABEL MOLINA-ISIDORO,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before DAVIS, HAYNES, and COSTA, Circuit Judges.
    GREGG COSTA, Circuit Judge: ∗
    After discovering kilos of meth in the suitcase Maria Isabel Molina-
    Isidoro was carrying across the border, customs agents looked at a couple of
    apps on her cell phone. Molina argues that the evidence found during this
    warrantless search of her phone should be suppressed. Along with amici, she
    invites the court to announce general rules concerning the application of the
    government’s historically broad border-search authority to modern technology
    for which the Supreme Court has recognized increased privacy interests. See
    Riley v. California, 
    134 S. Ct. 2473
    , 2489–91, 2493 (2014). We decline the
    invitation to do so because the nonforensic search of Molina’s cell phone at the
    ∗
    Judge Haynes concurs in the judgment only.
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    border was supported by probable cause. That means at a minimum the agents
    had a good-faith basis for believing the search did not run afoul of the Fourth
    Amendment.
    I.
    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
    2
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    a lawyer.
    Either at that point, or during the questioning, agents searched Molina’s
    phone, looking at Uber and WhatsApp. 1 They did not ask for, and Molina did
    not provide, consent for that search.          The agents found the following
    (paraphrased) conversation on Molina’s WhatsApp:
    Molina advised RAUL that she was headed to El Paso, and
    requested [that] RAUL . . . send her the information for the Uber.
    MOLINA advise[d] RAUL that she had arrived in El Paso. RAUL
    responded that he sent her the information for the Uber. RAUL
    sent a picture [o]f a credit card, front and back, and told MOLINA
    to use that credit card information to pay for [the] Uber. RAUL
    sent information regarding a hotel located in Juarez, Mexico.
    RAUL directed MOLINA to Hotel Suites in Colonia Playas, Room
    #10, and advised MOLINA that the stuff [was] located there.
    MOLINA advised RAUL that she [had] arrived [at] the room but
    no one was there. RAUL stated he w[ould] get a hold of them.
    MOLINA then responded that the guy [had been] asleep [but had
    now] opened the door. RAUL sent another picture of a Southwest
    Airlines flight itinerary. The itinerary listed MOLINA as the
    passenger o[n] a flight departing El Paso at 5:15 P.M. with a final
    destination of Ft. Lauderdale, Florida. MOLINA advised RAUL
    that she got the stuff and was headed back to El Paso.
    After the search, the government kept Molina’s phone but did not conduct a
    more intrusive forensic search of it.
    A     grand   jury   charged    Molina   with    one    count   of   importing
    methamphetamine and one count of possessing methamphetamine with the
    intent to distribute. She moved to suppress the evidence obtained during the
    cell phone search. The district court denied the motion to suppress, concluding
    that Riley v. California did not extend to the border-search context. It also
    observed that the most demanding requirement a court has required for any
    type of border search is reasonable suspicion, which existed for the search of
    1WhatsApp is an internet-based messaging service that permits users to exchange
    messages, make phone calls, and send images and videos.
    3
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    Molina’s phone.
    The district court then held a stipulated bench trial as Molina wanted to
    preserve her right to appeal the denial of the suppression motion. Molina was
    found guilty on both counts and sentenced to five years in prison.
    II.
    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).
    The agents searching Molina’s phone reasonably relied on the
    longstanding and expansive authority of the government to search persons and
    their effects at the border. The border-search doctrine has roots going back to
    our founding era. See United States v. Flores-Montano, 
    541 U.S. 149
    , 153
    (2004) (noting the Executive’s longstanding authority to conduct border
    searches without probable cause or a warrant). The location of a search at the
    border affects both sides of the reasonableness calculus that governs the
    Fourth Amendment. United States v. Montoya de Hernandez, 
    473 U.S. 531
    ,
    538 (1985). The government’s interest is at its “zenith” because of its need to
    prevent the entry of contraband, Flores-Montano, 
    541 U.S. at 152
    , and an
    4
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    individual’s privacy expectations are lessened by the tradition of inspection
    procedures at the border, Montoya de Hernandez, 
    473 U.S. at
    537–38.
    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
    also Wayne 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.
    As to the examination of her cell phone that she does contest, the agents
    reasonably relied on this broad border-search authority. In terms of the level
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    of suspicion, they had probable cause to support the search, which is the
    highest standard the Fourth Amendment requires even for searches occurring
    in the interior. See Illinois v. Gates, 
    462 U.S. 213
    , 246 (1983) (recognizing that
    even the search of a home, which enjoys the greatest Fourth Amendment
    protection, requires only probable cause to support a warrant).         Customs
    officials found a white crystal substance in a hidden compartment of Molina’s
    luggage that field-tested positive for methamphetamine. Molina admitted that
    no one could have placed the meth in that compartment without her
    knowledge, though she gave no explanation for how it got there. She also could
    not remember her brother’s address even though she had supposedly just been
    there, had no plane ticket to Tijuana, and provided no explanation for why she
    had so much personal clothing for such a short trip. This evidence made it
    highly likely Molina was engaged in drug trafficking and created a fair
    probability that the phone contained communications with the brother she
    supposedly visited (or whoever was the actual source of the drugs) and other
    information about her travel to refute the nonsensical story she had provided.
    Indeed, the incriminating evidence obtained against Molina even before the
    phone search was so strong that we doubt the information from WhatsApp was
    needed to convict her. But the government used that evidence during the
    bench trial and does not urge harmless error.
    The existence of probable cause means the only way Molina can show the
    search was unlawful is if a warrant was required. But as we have already
    explained, no court has ever required a warrant to support searches, even
    nonroutine ones, that occur at the border.        Although our court had not
    addressed border searches of an electronic device at the time of this search, a
    number of circuits had and none had required a warrant. See, e.g., United
    States v. Stewart, 729 F3d. 517, 525–26 (6th Cir. 2013); United States v.
    Cotterman, 
    709 F.3d 952
    , 962 (9th Cir. 2013) (en banc); United States v. Ickes,
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    393 F.3d 501
    , 504 (4th Cir. 2005); United States v. Linarez-Delgado, 259 F.
    App’x 506, 508 (3d Cir. 2007).
    Molina argues that Riley changes all that. Although most circuits to
    decide the issue had applied the search-incident-to-arrest doctrine to cell
    phones, the Supreme Court took a different view. 
    134 S. Ct. at 2493
    . In doing
    so, it relied on the heightened privacy interest in smart phones given their
    immense storage capacity and the inapplicability of the traditional search-
    incident-to-arrest rationale to these searches. 
    Id.
     at 2488–89. But Riley left
    open the possibility that “other case-specific exceptions may still justify a
    warrantless search of a particular phone.” 
    Id. at 2494
    .
    That caveat means it was reasonable for the agents to continue to rely
    on the robust body of pre-Riley caselaw that allowed warrantless border
    searches of computers and cell phones. What is more, not a single court
    addressing border searches of computers since Riley has read it to require a
    warrant. See, e.g., United States v. Escarcega, 685 F. App’x 354, 354 (5th Cir.
    2017); United States v. Gonzalez, 658 F. App’x 867, 870 (9th Cir. 2016); United
    States v. Kolsuz, 
    185 F. Supp. 3d 843
    , 852 (E.D. Va. 2016); United States v.
    Caballero, 
    178 F. Supp. 3d 1008
    , 1018 (S.D. Cal. 2016); United States v. Feiten,
    
    2016 WL 894452
    , at *6 (E.D. Mich. Mar. 9, 2016); United States v. Blue, 
    2015 WL 1519159
    , at *2 (N.D. Ga. Apr. 1, 2015). Although what ultimately matters
    is the reasonableness of the officers’ actions at the time of the search, it is
    telling that no post-Riley decision issued either before or after this search has
    required a warrant for a border search of an electronic device. 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)).           LeFave
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    recognizes that “Riley may prompt a reassessment” of border searches of
    computers but “doubt[s] that Riley will be deemed to foreclose all warrantless
    computer searches at the border.” Id. n.22. If federal judges and a leading
    Fourth Amendment scholar do not believe Riley overrides the caselaw allowing
    warrantless border searches of cell phones (especially nonforensic ones), it is
    reasonable for government agents to take the same view until something
    changes. 2
    The bottom line is that only two of the many federal cases addressing
    border searches of electronic devices have ever required any level of suspicion.
    They both required only reasonable suspicion and that was for the more
    intrusive forensic search. See Cotterman, 709 F.3d at 962; United States v.
    Saboonchi, 
    990 F. Supp. 2d 536
    , 569–70 (D. Md. 2014). 3 Here we have a
    manual, sometimes called “cursory” in the caselaw, search of a phone. And
    neither Cotterman nor Saboonchi required a warrant even for forensic searches
    occurring at the border. The latter concluded that “the border search exception
    [was] unaffected by Riley” when a motion for reconsideration relied on that
    2  In addition to arguing that the reasoning of Riley should result in a warrant
    requirement for border searches of cell phones, Molina argues that a warrant was required
    because after the discovery of the meth the incident transformed from a border encounter
    into a law enforcement investigation. But she cites no case making this distinction and there
    is caselaw rejecting it. See, e.g., Ickes, 
    393 F.3d at 507
     (holding that the postarrest search of
    laptop was a border search); Kolsuz, 185 F. Supp. 3d at 851 (same post-Riley); Caballero, 178
    F. Supp. 3d at 1016–17 (recognizing some logic to this argument but rejecting it under
    existing caselaw). Judged again from the standpoint of the good-faith exception, it was
    reasonable for the agents to believe their border-search authority extended past the discovery
    of the meth, especially given how little time elapsed between that discovery and the phone
    search.
    3 A third case, United States v. Kim, found the search of a laptop computer using
    forensic software for the purpose of gathering evidence in a preexisting investigation
    supported by “so little suspicion of ongoing or imminent criminal activity” and so
    disconnected from the considerations underpinning the government’s border-search
    authority and “also the border itself” that it was unreasonable. 
    103 F. Supp. 3d 32
    , 59 (D.D.C.
    2015). As to that final point, the computer in Kim was seized as the defendant was leaving
    the country and the forensic search of the computer was conducted later after the computer
    was sent to a forensic specialist. So it is not like the typical border-search case.
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    recent Supreme Court decision. Saboonchi, 48 F. Supp. 3d at 817. Given the
    state of the law when agents looked at the apps on Molina’s phone, it was
    eminently reasonable for them to think that the probable cause they had to
    believe it contained evidence of drug crimes made the search a lawful one.
    ***
    Because the officers acted in good faith in searching the phone, the
    judgement of the district court is AFFIRMED.
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    GREGG COSTA, Circuit Judge, specially concurring:
    Courts should resist the temptation to frequently rest their Fourth
    Amendment decisions on the safe haven of the good-faith exception, lest the
    courts fail to give law enforcement and the public the guidance needed to
    regulate their frequent interactions. Davis v. United States, 
    564 U.S. 229
    , 245–
    46 (2011) (recognizing concerns that overreliance on the good-faith exception
    risks “stunt[ing] the development of Fourth Amendment law”); cf. Pearson v.
    Callahan, 
    555 U.S. 223
    , 236 (2009) (giving courts discretion to grant qualified
    immunity based only on the “clearly established” inquiry but noting that
    deciding the underlying constitutional question is “often beneficial”).            But
    reliance on good faith is particularly appropriate for the question this case
    raises about the application of the border-search doctrine to the modern cell
    phones that a large number of the hundreds of millions of people entering the
    United States each year carry with them. 1 For one thing, the existence of good
    faith is not a close call. Cf. Pearson, 
    555 U.S. at 239
     (recognizing in the
    analogous     two-step     qualified     immunity     context    that   avoiding    the
    constitutional question will often be appropriate when the “clearly established”
    question can be “quickly and easily decide[d]”).            As the majority opinion
    explains, the government had probable cause for the manual search of Molina’s
    phone. Maj. Op. at 6. The lesser threshold of reasonable suspicion is the
    highest showing any court of appeals has required for a border search of an
    electronic device, and that was for a more intrusive forensic search. See United
    States v. Cotterman, 
    709 F.3d 952
    , 962 (9th Cir. 2013) (en banc). And no
    reported federal decision has required a warrant for any border search.
    1  U.S. Dep’t of Homeland Sec., CIVIL RIGHTS/CIVIL LIBERTIES IMPACT ASSESSMENT:
    BORDER SEARCHES OF ELECTRONIC DEVICES 1 (2011), https://www.dhs.gov/sites/default/files/
    publications/Redacted%20Report.pdf (noting that in 2010 an average of nearly 30 million
    travelers entered the United States each month).
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    Against this lack of support for Molina’s position are numerous cases allowing
    warrantless, often suspicionless, searches of digital devices at the border. See
    Maj. Op. at 7–9.
    Also counseling against deciding the constitutional issue is the risk of
    announcing general principles that would fix precedent in a rapidly changing
    area.       The Supreme Court is currently considering yet another case that
    addresses how to apply longstanding principles of the Fourth Amendment—
    this time the “third-party doctrine”—to new communications technology.
    United States v. Carpenter, 
    819 F.3d 880
    , 884, 886 (6th Cir. 2016) (evaluating
    whether the collection of cell-site data from wireless carriers violates the
    Fourth Amendment), cert. granted, 
    137 S. Ct. 2211
     (2017).                      Government
    policies on border searches are also changing; the same day this case was
    argued the Department of Homeland Security issued a new policy regulating
    border searches of computers and cell phones.                  U.S. Customs & Border
    Protection, CBP Directive No. 3340-049A, Border Search of Electronic Devices
    (2018),        https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/
    CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-
    Compliant.pdf. 2 And, of course, the capabilities of technology are constantly
    evolving.
    Some or all of these developments may influence the ultimate
    determination of how the government’s venerable border-search authority
    applies to electronic devices. Although the good-faith exception presents an
    easy question in light of existing caselaw, deciding the standard that applies
    2Under the new policy, customs officers are permitted to conduct “basic” searches of
    digital devices at the border without suspicion. CBP Directive No. 3340-049A, supra, at 4. A
    basic search includes the examination of information kept on the device itself that is
    accessible without a wired or wireless connection. Id. at 4–5. By contrast, a customs officer
    can conduct an “advanced” search, in which external equipment is connected to the device, to
    review, copy, or analyze the contents of that device only with reasonable suspicion of activity
    that violates the customs laws or poses a threat to national security. Id. at 5.
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    to border searches of digital devices is not so clear cut. In declining to apply to
    cell    phones    the    search-incident-to-arrest       exception      to   the    warrant
    requirement, Riley v. California focused on the inapplicability of that doctrine’s
    rationales—the protection of police officers and preventing the destruction of
    evidence—to phone searches at the scene of an arrest. 
    134 S. Ct. 2473
    , 2485–
    87 (2014). It also emphasized the immense storage capacity of modern cell
    phones. 
    Id. at 2489
    . Molina also highlights that capacity in arguing that cell
    phones should be treated differently from other objects at the border.
    But if the expansiveness of cell phones’ memory is what has led the
    Supreme Court to provide these devices increased protection in some Fourth
    Amendment areas, the best argument for carving them out of the government’s
    traditional border-search authority is the physical limitations of their capacity.
    Most contraband, the drugs in this case being an example, cannot be stored
    within the data of a cell phone. 3 Detection of such contraband is the strongest
    historic rationale for the border-search exception. United States v. Montoya de
    Hernandez, 
    473 U.S. 531
    , 537 (1985) (“Since the founding of our Republic,
    Congress has granted the Executive plenary authority to conduct routine
    searches and seizures at the border, without probable cause or a warrant, in
    order to regulate the collection of duties and to prevent the introduction of
    contraband into this country.”); United States v. Ramsey, 
    431 U.S. 606
    , 619
    (1977) (“Historically such broad powers have been necessary to prevent
    smuggling and to prevent prohibited articles from entry.” (quoting United
    States v. 12 200-Ft. Reels of Film, 
    413 U.S. 123
    , 125 (1973))); United States v.
    Thirty-Seven Photographs, 
    402 U.S. 363
    , 376 (1971) (explaining that customs
    One type of contraband that can be stored within the data of a cell phone or computer
    3
    is child pornography. See, e.g., United States v. Cotterman, 
    709 F.3d 952
    , 958–59 (9th Cir.
    2013) (en banc) (noting that agents discovered child pornography during the search of a
    laptop seized at the border).
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    officials’ authority to search luggage is “an old practice and is intimately
    associated with excluding illegal articles from the country”).                   The First
    Congress authorized customs officials to search for and seize “goods, wares,
    and merchandises” that may be concealed in ships entering the country to
    avoid duties; it did not provide that authority to obtain evidence of crimes other
    than the contraband itself. Act of July 31, 1789, 
    1 Stat. 29
    . The Supreme
    Court has long cited that statute, passed by the same Congress that proposed
    the Fourth Amendment, as a reason why warrantless border searches are not
    “unreasonable” within the meaning of the Constitution. Boyd v. United States,
    
    116 U.S. 616
    , 623–24 (1886); see also Ramsey, 
    431 U.S. at 617
    ; Carroll v. United
    States, 
    267 U.S. 132
    , 150–51 (1925). 4 The modern version of this customs law
    is also limited to the search and seizure of actual objects that are being
    imported unlawfully. See 
    19 U.S.C. § 482
    (a). And every border-search case
    the Supreme Court has decided involved searches to locate items being
    smuggled into the country, whether those objects were hidden in mail, Ramsey,
    
    431 U.S. at
    624–25, a gas tank, United States v. Flores-Montano, 
    541 U.S. 149
    ,
    155–56 (2004), or a stomach, Montoya de Hernandez, 
    473 U.S. at 544
    .
    As    the    district   court     recognized,     this    detection-of-contraband
    justification would not seem to apply to an electronic search of a cell phone or
    computer. 5 But other considerations may still support giving government
    agents more leeway in searching technology at the border as opposed to inside
    the country. One is that the “expectation of privacy [is] less at the border than
    4 Also notable is that the statute, though cited as part of the pedigree supporting
    suspicionless border searches, only gives collectors the power to enter ships “in which they
    shall have reason to suspect any goods, wares or merchandise subject to duty shall be
    concealed.” Act of July 31, 1789, 
    1 Stat. 43
     (emphasis added).
    5 To the extent that drugs or other contraband can be hidden physically in a phone or
    computer, a physical search or x-ray of the device is seemingly no different from the search
    of any other object, such as luggage. But that would not involve access to the “broad array of
    private information” that a manual or forensic search of the phone’s data would reveal, which
    is what heightens the privacy interest for electronic devices. Riley, 
    134 S. Ct. at 2491
    .
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    in the interior.” Montoya de Hernandez, 
    473 U.S. at
    539–40 (citing Carroll,
    
    267 U.S. at 154
    ). Yet even if that reduced privacy interest might support
    lowering the thresholds ordinarily required for searches, it is doubtful that side
    of the equation on its own would support searches at the border that require
    neither a warrant nor suspicion. Cf. Riley, 
    134 S. Ct. at 2488
     (“The fact that
    an arrestee has diminished privacy interests does not mean that the Fourth
    Amendment falls out of the picture entirely.”).       To get to that position of
    essentially unlimited government authority for routine border searches, the
    Supreme Court has put more emphasis on the other side of the Fourth
    Amendment balance: the government’s heightened interest at the border. See
    
    id.
     at 538–40 (noting the reduced privacy interest at the border but reiterating
    the strong government interest). If contraband is not being electronically
    concealed in phones and computers, does the government still have as
    compelling an interest in searching those items at the border? The government
    argues it does because the interests in national security and fighting crime are
    especially weighty at the border and searches of technology can uncover
    evidence of border crimes. No doubt a text message or email may reveal
    evidence of crimes, but that is true both at and inside the border. But it is
    uncertain whether the evidence-gathering justification is so much stronger at
    the border that it supports warrantless and suspicionless searches of the
    phones of the millions crossing it. The Supreme Court has not focused on it in
    discussing the broad border-search authority, instead emphasizing the historic
    rationale of finding contraband.
    There may a clue to resolving this dilemma in the earliest case that gets
    cited for the constitutionality of border searches; it also happens to be the first
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    No. 17-50070
    Supreme Court case addressing any aspect of the Fourth Amendment. 6 Boyd
    v. United States draws a sharp distinction between searches for contraband
    and those for evidence that may reveal the importation of contraband. In
    finding unconstitutional a revenue law that allowed subpoenas for a customs
    invoice, Boyd observes that:
    The search for and seizure of stolen or forfeited goods, or goods
    liable to duties and concealed to avoid the payment thereof, are
    totally different things from a search for and seizure of a man’s
    private books and papers for the purpose of obtaining information
    therein contained, or of using them as evidence against him. The
    two things differ toto coelo.
    
    116 U.S. at 623
    . But see Warden v. Hayden, 
    387 U.S. 294
    , 300–01 (1967)
    (rejecting a Fourth Amendment distinction between “seizure of items of
    evidential value only and seizure of instrumentalities, fruits, or contraband”). 7
    In explaining why the two searches differ to the “whole extent of the heavens”
    6  Wayne LeFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
    § 1.1(b); see also Carroll, 
    267 U.S. at 147
     (calling Boyd “[t]he leading case on the subject of
    search and seizure”).
    7 Hayden rejects the “mere evidence” rule that had long prevented the government
    from using warrants to obtain evidence that was not itself the instrumentality of a crime or
    contraband. 
    387 U.S. at
    301–02 (citing and casting doubt on this aspect of Gouled v. United
    States, 
    255 U.S. 298
    , 309 (1921)). The idea was that the authority to seize property extended
    only to objects in which the subject of the search had forfeited an interest to the government
    because of the item’s illegality. Gouled, 
    255 U.S. at 309
    ; see also Hayden, 
    387 U.S. at 303
    (“The Fourth Amendment ruling in Gouled was based upon the dual, related premises that
    historically the right to search for and seize property depended upon the assertion by the
    Government of a valid claim of superior interest, and that it was not enough that the purpose
    of the search and seizure was to obtain evidence to use in apprehending and convicting
    criminals.”).     Although Hayden is viewed as a broad rejection of the “mere
    evidence”/instrumentality distinction, see LeFave, supra, § 4.1(c), there are reasons to believe
    the distinction still matters when it comes to border searches. Most importantly, in a number
    of decisions since Hayden the Supreme Court has continued to chiefly rely on the detection-
    of-contraband rationale in supporting the government’s broad border-search authority. That
    makes sense as seizing contraband was the power granted in the customs law passed by the
    First Congress that the Court has repeatedly relied on in authorizing warrantless searches
    of those entering the country. From a broader jurisprudential perspective, Hayden rejected
    the distinction as one based on a “discredited” property view of the Fourth Amendment, 
    387 U.S. at 304
    , see LeFave, supra, § 2.6(e), but that approach is enjoying a resurgence, see, e.g.,
    Florida v. Jardines, 
    569 U.S. 1
    , 5 (2013); United States v. Jones, 
    565 U.S. 400
    , 404–05 (2012).
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    in the meaning of the Latin phrase used, the Boyd Court noted that the seizure
    of goods “concealed to avoid the duties payable on them[] has been authorized
    by English statutes for at least two centuries past; and the like seizures have
    been authorized by our own revenue acts from the commencement of the
    government.”       
    116 U.S. at 623
    .      No similar tradition exists for unlimited
    authority to search and seize items that might help to prove border crimes but
    are not themselves instrumentalities of the crime. To be sure, Boyd addresses
    a government attempt to obtain import invoices not at the border but via a
    subpoena during a prosecution (and the Fifth Amendment aspects of its
    holding are no longer good law 8). But its emphatic distinction between the
    sovereign’s historic interest in seizing imported contraband and its lesser
    interest in seizing records revealing unlawful importation has potential
    ramifications for the application of the border-search authority to electronic
    data that cannot conceal contraband and that, to a much greater degree than
    the papers in Boyd, contains information that is “like an extension of the
    individual’s mind” and works as a “substitute for the perfect memory that
    humans lack.” Samuel A. Alito, Jr., Documents and the Privilege Against Self-
    Incrimination, 48 U. PITT. L. REV. 27, 39 (1986) (referring to this last insight
    as a “kernel of truth” from Boyd).
    The contours of the border-search doctrine in this new area—what level
    of suspicion, if any, is required and whether a warrant is ever required—may
    well turn on whether the interest at the border in general crime fighting and
    national security, which phone searches can further, is as weighty as the
    traditional justification of seizing contraband, which an electronic search is not
    likely to accomplish. Because the Supreme Court has not said much about this
    8 See Andresen v. Maryland, 
    427 U.S. 463
    , 471–72 (1976); Fisher v. United States, 
    425 U.S. 391
    , 407–08 (1976); see also Samuel A. Alito, Jr., Documents and the Privilege Against
    Self-Incrimination, 48 U. PITT. L. REV. 27, 43–44 (1986).
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    alternative justification the government cites, future developments may
    provide guidance. That counsels for not freezing our approach in place when
    we don’t have to.
    17