United States v. Miguel Cano ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50151
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-01770-BTM-1
MIGUEL ANGEL CANO,
Defendant-Appellant. ORDER
Filed September 2, 2020
Before: Susan P. Graber and Jay S. Bybee, Circuit Judges,
and M. Douglas Harpool,* District Judge.
Order;
Dissent by Judge Bennett
*
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
2 UNITED STATES V. CANO
SUMMARY**
Criminal Law
The panel denied a petition for rehearing and denied on
behalf of the court a petition for rehearing en banc.
Judge Bennett, joined by Judges Callahan, M. Smith,
R. Nelson, Bade, and VanDyke, dissented from the denial of
rehearing en banc. Judge Bennett wrote that under the
panel’s decision, border officials in this circuit are now
constitutionally barred from forensically searching a
traveler’s cell phone at the border, even if armed with
reasonable suspicion the phone contains evidence of terrorist
acts the traveler is about to commit in the United States;
evidence the traveler is entering the United States under a
false name; evidence of contemporaneous smuggling activity
by the traveler; evidence of other border related crimes; or
evidence of non-child pornography contraband.
COUNSEL
Harini P. Raghupathi (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), and Peter Ko, Assistant United States
Attorneys; Daniel E. Zipp, Chief, Appellate Section, Criminal
Division; Robert S. Brewer Jr., United States Attorney;
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CANO 3
United States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.
Sophia Cope and Adam Schwartz, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.
ORDER
The panel judges have voted to deny Plaintiff-Appellee’s
petition for rehearing. Judge Graber voted to deny the
petition for rehearing en banc, and Judges Bybee and Harpool
recommended denying the petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
Plaintiff-Appellee’s petition for rehearing and petition for
rehearing en banc, filed January 2, 2020, are DENIED.
BENNETT, Circuit Judge, with whom CALLAHAN,
M. SMITH, R. NELSON, BADE and VANDYKE, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
In 2016, Defendant Miguel Cano entered the United
States from Mexico, and a routine search of his truck turned
up 31 pounds of cocaine hidden in his spare tire. As the panel
correctly noted, border officials “had reason to suspect that
4 UNITED STATES V. CANO
Cano’s [cell] phone would contain evidence leading to
additional drugs.” United States v. Cano, 934 F.3d 1002,
1021 (9th Cir. 2019).1 And so, those border officials—
objectively relying on decisions from the Supreme Court and
a recent en banc decision from our court—searched the
phone. Unsurprisingly they found more evidence of Cano’s
guilt. Despite an unbroken line of cases authorizing the
border search here, the panel reversed Cano’s convictions
because in their view, reasonable suspicion of criminal
activity cannot justify a forensic search of Cano’s phone.
Instead, the panel held that absent a warrant, border officials,
with reasonable suspicion or probable cause of other criminal
activity, could only forensically search a cell phone to see if
it contained contraband. And since effectively the only
contraband a cell phone can contain is child pornography,2
the only permissible forensic search at the border is one for
child pornography. Even then, only if agents have reasonable
suspicion the phone contains child pornography. The
government has referred to the panel’s decision as an
“outlier.”3 It is that, but far more. The Supreme Court has told
us that a border search is reasonable simply because it takes
place at the border. The Court has also instructed that the
sovereign’s power at the border is at its “zenith.” The limits
the panel placed on border searches ignores the Court’s
1
The district court had found that “[t]his not only amounts to
reasonable suspicion, but gives rise to probable cause.” United States v.
Cano, 222 F. Supp. 3d 876, 882 (S.D. Cal. 2016) rev’d, 934 F.3d 1002
(9th Cir. 2019).
2
Cano, 934 F.3d at 1021.
3
Brief for the United States in Opposition at 27, Williams v. United
States, No. 19-1221 (U.S. June 19, 2020).
UNITED STATES V. CANO 5
teachings and, as a result, makes our borders far more porous
and far less safe.
Border officials in our circuit are now constitutionally
barred from forensically searching a traveler’s cell phone at
the border, even if armed with reasonable suspicion the
phone contains evidence of terrorist acts the traveler is about
to commit in the United States; evidence the traveler is
entering the United States under a false name; evidence of
contemporaneous smuggling activity by the traveler;
evidence of other border related crimes; or evidence of non-
child pornography contraband.4 This is the sovereign power
at its nadir, not its zenith.
We should have taken this case en banc to correct the
panel’s errors, and I respectfully dissent from our failure to
do so.
4
The opinion quotes language from Carroll v. United States, 267 U.S.
132 (1925) describing the government’s interest in controlling who may
enter the country. See United States v. Cano, 934 F.3d 1002, 1013 (9th
Cir. 2019). But the holding of Cano leaves no room for this interest—“the
border search exception authorizes warrantless searches of a cell phone
only to determine whether the phone contains contraband.” 934 F.3d at
1018 (emphasis added). Nor does the opinion mention the government’s
national security interest at the border. See, e.g., United States v. Kolsuz,
890 F.3d 133, 143 (4th Cir. 2018) (concluding that some transnational
offenses implicating national security interests “go[] to the heart of the
border search exception”); United States v. Boumelhem, 339 F.3d 414, 423
(6th Cir. 2003) (noting that the sovereign interest to protect itself includes
“significant government interests in the realms of national security and
relations with other nations”); see also Tabbaa v. Chertoff, 509 F.3d 89,
97 (2d Cir. 2007) (recognizing that a “crucial” aspect of Customs and
Border Protection’s authority “is to ‘prevent terrorist attacks within the
United States’ and ‘reduce the vulnerability of the United States to
terrorism.’” (quoting 6 U.S.C. § 111(b)(1)).
6 UNITED STATES V. CANO
I.
On July 25, 2016, Miguel Cano entered the United States
from Tijuana for the seventh time that summer.5 Cano,
934 F.3d at 1008. During a secondary inspection, a narcotics
dog alerted near the spare tire of Cano’s truck. Id. A Customs
and Border Protection (CBP) officer discovered about
31 pounds of cocaine in 14 vacuum-sealed packages inside
the spare tire. Id.
CBP officers arrested Cano and seized his cell phone. Id.
They then called Homeland Security Investigations, which
dispatched two agents to investigate. Id. The agents manually
searched Cano’s phone and questioned Cano after he waived
his Miranda rights. Id. Cano told them that he moved to
Tijuana to look for work in San Diego because work was
slow in Los Angeles, and he was going to a carpet store in
Chula Vista to seek work. Id. He also explained that he
deleted his text messages before crossing the border on his
cousin’s advice “just in case” he was pulled over by Mexican
police. Id. One of the agents conducted a second manual
search of the phone during the interview, wrote down some
of the phone numbers in the phone’s call log, noted that two
new text messages had arrived after Cano crossed the border,
and took a picture of those messages. Id. The agent then used
Cellebrite software to download data from the phone.6 Agents
5
He had crossed the border six times that summer, sometimes staying
less than thirty minutes in the United States. Cano, 934 F.3d at 1008. He
was twice referred to secondary inspection, but no contraband was found.
Id.
6
A Cellebrite “logical download” allows the government “access [to]
text messages, contacts, call logs, media, and application data on a cell
phone and to select which types of data to download.” Id. at 1008–09. But
UNITED STATES V. CANO 7
reviewed the download after the interview and saw a list of
Cano’s calls. Id. at 1009. None of the numbers Cano called
“corresponded to carpeting stores in San Diego.” Id.
Cano was indicted for importing cocaine and moved to
suppress the evidence obtained from the warrantless searches
of his phone at the border. Id. The district court denied the
motion, finding the manual search was “clearly permissible”
and “the agents had reasonable suspicion and even probable
cause” to perform the “logical download.” Cano, 222 F.
Supp. 3d at 882. The government introduced, and relied on,
evidence obtained from the phone at trial. Cano in turn
presented a third-party culpability defense, claiming that his
cousin placed the drugs in Cano’s spare tire without Cano’s
knowledge. Cano, 934 F.3d at 1009. The jury was hung after
the first trial and convicted Cano at the second. Id. at 1010.
A panel of this court reversed because “the district court
erred in denying Cano’s motion to suppress.” Id. at 1010. The
panel agreed with Cano that the warrantless searches of his
phone at the border violated the Fourth Amendment because
“border searches are limited in both purpose and scope to
searches for contraband.” Id. at 1016–17. The panel drew a
“distinction between seizing goods at the border because their
importation is prohibited and seizing goods at the border
because they may be useful in prosecuting crimes.” Id. at
1018. From this, the panel imposed “two practical limitations
on warrantless border searches.” Id. at 1019. First, border
officials can search for only contraband (rather than evidence
of contraband-related crimes) because otherwise the search is
“untethered” from the exception. Id. Second, border officials
the software does not allow access to data stored within third-party
applications. Id. at 1009.
8 UNITED STATES V. CANO
need reasonable suspicion of digital contraband (like child
pornography) concealed within a cell phone to forensically
search a cell phone. Id. at 1020. Otherwise, the panel opined,
the government could forensically search “every electronic
device of anyone arrested at the border” and this would go
against “the protections laid out in Riley”7 simply because the
search occurred at the border. Id.
Applying this new view of the border search exception to
the facts of the case, the panel found that the second manual
search of the phone was outside the scope of the border
search exception irrespective of the reasonable suspicion of
border-related crimes. Id. at 1019. The agent could not record
the phone numbers or photograph the two messages received
because “[t]hose actions have no connection whatsoever to
digital contraband.” Id. Thus, the second manual search was
unreasonable. And the panel held if the use of the Cellebrite
software to download some of the phone’s contents was a
forensic search, it was unreasonable because agents had no
reasonable suspicion that there was contraband on the phone.
Id. at 1020. The panel also concluded that once a person has
been arrested “there is no reason why border officials cannot
obtain a warrant before conducting their forensic search”
because new technology allows for faster processing of
warrant applications. Id.
7
In Riley v. California, 573 U.S. 373 (2014), the Court held “a
warrant is generally required before . . . a search [for information on a cell
phone], even when a cell phone is seized incident to arrest.” Id. at 401.
The Court limited this holding only to the search incident to arrest
exception. Id. at 385 (“These cases require us to decide how the search
incident to arrest doctrine applies to modern cell phones . . . .”); id.
at 401–02 (“[E]ven though the search incident to arrest exception does not
apply to cell phones, other case-specific exceptions may still justify a
warrantless search of a particular phone.”).
UNITED STATES V. CANO 9
Finally, the panel found the good faith exception did not
apply because under the panel’s new interpretation of United
States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc)
—that Cotterman authorized only a search for contraband,
not evidence—the CBP agents could not have relied in good
faith on Cotterman to search for evidence of border-related
crimes. Id. at 1021–22.
II.
The panel decision runs headlong into decades of
Supreme Court precedent and deviates from the historical
understanding of the purpose of the border search exception.
The panel’s framework also goes against the clear statement
of the law in Cotterman and has been soundly rejected by at
least two other circuits.
A.
The border search exception is “as old as the Fourth
Amendment itself” and “is grounded in the recognized right
of the sovereign to control, subject to substantive limitations
imposed by the Constitution, who and what may enter the
country.” United States v. Ramsey, 431 U.S. 606, 619, 620
(1977). In Ramsey, the Court emphasized that a border search
is reasonable by one “single fact”: did the “person or item in
question . . .enter[] into our country from outside[?]” Id.
at 619. Nothing in the opinion purported to limit the power of
the sovereign at the border to search only for contraband, and
the Court expressly reserved the question of whether the
search was authorized under the statute at issue or whether
that statute imposed a limit “on otherwise existing authority
of the Executive.” Id. at 615. Put differently, Ramsey did not
decide whether border searches need to be authorized by
10 UNITED STATES V. CANO
statute or are per se valid exercises of Executive power. The
Court in Ramsey chided the D.C. Circuit for characterizing
the Court’s prior decisions as a refusal “to take an expansive
view of the border search exception or the authority of the
Border Patrol.” Id. at 622. The Court instead noted that the
border search authority is “plenary.” Id.
The Court revisited the border search exception in United
States v. Montoya de Hernandez, 473 U.S. 531 (1985),
reversing a decision of our court. The case focused on an
alimentary canal search of a cocaine “balloon-smuggler,” and
once again emphasized the government’s “plenary authority
to conduct routine searches and seizures at the border”
because searches “at the national border rest on different
considerations and different rules of constitutional law from
domestic regulations.” Id. at 537 (citation omitted). The Court
again was clear:
Here the seizure of respondent took place at
the international border. 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.
Id. Balancing the “sovereign’s interests at the border [against]
the Fourth Amendment rights of [the] respondent” the Court
held that reasonable suspicion is necessary for searches
“beyond the scope of a routine customs search and
UNITED STATES V. CANO 11
inspection.” 8 Id. at 539–41. The Court also cautioned judges
to “not indulge in unrealistic-second guessing” or engage in
post hoc evaluation of agents’ behavior when discussing
whether a particular detention was reasonably related in scope
to the circumstances. Id. at 542. The Court lastly took us to
task for establishing an intermediate standard between
“reasonable suspicion” and “probable cause”—that of a
“clear indication.” Id. at 540–41.
The final time the Court addressed the border search
exception was in United States v. Flores-Montano, 541 U.S.
149 (2004), after our court held that agents needed reasonable
suspicion to remove a gas tank at the border. Id. at 151. The
Court once again emphasized that “[t]he Government’s
interest in preventing the entry of unwanted persons and
effects is at its zenith at the international border” because “[i]t
is axiomatic that the United States, as sovereign, has the
inherent authority to protect, and a paramount interest in
protecting, its territorial integrity.” Id. at 152–53. The Court
also noted that “the expectation of privacy is less at the
border than it is in the interior.” Id. at 154. Applying these
principles, the Court reversed our decision. Id. at 156.
Thus, the Court has never questioned the scope of the
border search exception and “[t]ime and again,” confirmed
the broad authority of the sovereign at the border.9 Id. at 152.
8
The Court did not define what types of searches were beyond the
scope of a routine customs search other than “strip, body cavity, or
involuntary x-ray searches.” Montoya de Hernandez, 473 U.S. at 541 n.4.
9
This also tracks the English common law understanding of the
traditional search powers of the sovereign. During the 1600s, for example,
“[m]ost Englishmen . . . understood their houses to be castles only against
their fellow subjects and conceded almost absolute powers of search,
12 UNITED STATES V. CANO
B.
Our circuit has imposed another limitation on the
sovereign at the border. In Cotterman, we held that border
officials needed reasonable suspicion to forensically search
electronic devices at the border. See United States v.
Cotterman, 709 F.3d at 970. While in tension with the
Court’s admonition that a border search is “reasonable” by
virtue of being at the border, see Ramsey, 431 U.S. at 619,
our court imposed this “modest, workable standard” because
it analogized intrusive forensic searches to “computer strip
search[es]” given “the uniquely sensitive nature of data on
arrest, and confiscation to the government.” William J. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 1602–1791, Ixiii
(2009). Similarly, the sovereign search power at common law extended
beyond enforcement of excise taxes and contraband. Id. at 89 (noting that
the Privy Council directed customs personnel and other officials to search
for “military deserters returning from France” in 1592). It was not until the
mid-1700s that the view that a “man’s home is his castle” expanded to bar
certain searches by the Crown. Id. at Ixiv. But while this change was
occurring and the sovereign’s powers to search the home became
restricted by law, there was no accompanying shift in the view of the
power at the border in England, id. at 325 (“[F]or affairs on which the
perceived survival of the realm hinged . . . only the general warrant
existed, and the specific warrant was not even a candidate.”), or in the
Colonies, id. (noting that the primary focus was on searches of the home
and “ship searches” for example were not discussed or debated “even
during the decade in which the Fourth Amendment was framed, debated,
and ratified”); see also id. at 745 (noting the requirement for a warrant
“stopped at the waterline” in the Colonies). There is no historical
precedent that the sovereign’s power at the border was in any way limited
at the founding. Cf. Riley, 573 U.S. at 403 (“Our cases have recognized
that the Fourth Amendment was the founding generation’s response to the
reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,
which allowed British officers to rummage through homes in an
unrestrained search for evidence of criminal activity.” (emphasis added)).
UNITED STATES V. CANO 13
electronic devices.” Cotterman, 709 F.3d at 966. But we
plainly stated that officials must “possess a particularized and
objective basis for suspecting the person stopped of criminal
activity” to forensically search a laptop at the border. Id. at
967 (quotation marks omitted and emphasis added). In fact,
we could not have been clearer in explaining the reasonable
suspicion standard as we used “criminal activity” thirteen
times when discussing the appropriate focus of the standard.
Not once did we say reasonable suspicion of contraband.
In articulating why reasonable suspicion is a workable
standard at the border, we explained that border officials
would conduct forensic searches when “their suspicions are
aroused by what they find or by other factors” and the
reasonable suspicion standard “leaves ample room for agents
to draw on their expertise and experience to pick up on subtle
cues that criminal activity may be afoot.” Id. (emphasis
added). This statement is unambiguous. Then, when
discussing the relevant factors agents must consider in the
totality of the circumstances analysis, we explained that
encryption or password protection of data on a device does
not alone create reasonable suspicion. Id. at 969. Rather, the
encryption or password protection must relate “to the
suspected criminal activity.” Id. We also differentiated
between the different types of criminal activity agents could
reasonably suspect to justify a forensic search. Id. at 970
(“Nor did the agents’ discovery of vacation photos eliminate
the suspicion that Cotterman had engaged in criminal activity
while abroad or might be importing child pornography into
the country.” (emphasis added)). Before this decision, courts
across the country uniformly applied Cotterman to determine
whether border officials had reasonable suspicion of criminal
activity, not just contraband, to justify forensic searches of
14 UNITED STATES V. CANO
electronic devices at the border.10 The panel’s “clarification”
goes against the text and analysis in Cotterman.11
C.
The panel’s view has also already been rejected by the
Fourth and Tenth Circuits, with others likely to follow. The
panel acknowledged that its “analysis is in tension with the
Fourth Circuit[].” Cano, 934 F.3d at 1017 (citing United
States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018)). Just after
Cano was decided, the Tenth Circuit deepened that split. See
United States v. Williams, 942 F.3d 1191 (10th Cir. 2019)
petition for cert. filed, (U.S. Apr. 13, 2020) (No. 19-1221).
In Kolsuz, the Fourth Circuit upheld the forensic search of
a cell phone after the defendant was arrested for violating
10
No other court has interpreted Cotterman’s reasonable suspicion
test to apply only to contraband. See, e.g., United States v. Hassanshahi,
75 F. Supp. 3d 101 (D.D.C. 2014) (forensic laptop search was supported
by reasonable suspicion that defendant was violating the Iran trade
embargo); United States v. Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014)
(forensic search of electronic devices including a cell phone was
supported by reasonable suspicion defendant was engaged in export
control violations); United States v. Kim, 103 F. Supp. 3d 32 (D.D.C.
2015). In Kim in particular, the court found that the Cotterman standard
would have been satisfied if the officer “would have been justified in his
belief that [defendant] was engaged in ongoing criminal activity at the
time he was stopped.” 103 F. Supp. 3d at 44.
11
This clarification also runs into another problem. We have already
relied on Cotterman’s reasonable suspicion test in another decision
unrelated to the border search exception. See United States v. Valdes-
Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc). The panel’s narrow view
of Cotterman’s legal test is difficult to square with our citing Cotterman
for the broad rule that reasonable suspicion requires some suspicion of
criminal activity. Id. at 1078.
UNITED STATES V. CANO 15
export laws. 890 F.3d at 136–37. The court reasoned “[t]he
justification behind the border search exception is broad
enough to accommodate not only the direct interception of
contraband as it crosses the border, but also prevention and
disruption of ongoing efforts to export contraband illegally,
through searches initiated at the border.”12 Id. at 143–44.
Kolsuz had unsuccessfully argued that the scope of the border
search exception was untethered from the search of his phone
because “there was no contraband poised to exit the country”
once he was arrested. Id. at 142–43.
Similarly, after Cano was decided, the Tenth Circuit
found that reasonable suspicion of criminal activity justified
a warrantless search of a laptop and cell phone. See Williams,
942 F.3d at 1190–91. A search of the laptop using a software
program to bypass the passwords revealed child pornography
after defendant’s passport triggered a secondary inspection
based on “lookout alerts.” Id. at 1188–90. The Tenth Circuit
found reasonable suspicion existed based on defendant’s
border-related criminal history, his untruthful answers about
his travel history, and that he was returning on a one-way
ticket from Paris, the site of a recent terrorist attack, after
visiting the three countries linked to the attack. Id.
at 1190–91. The court also rejected the defendant’s argument
that “border agents are tasked exclusively with upholding
customs laws and rooting out the importation of contraband,”
and thus rejected the argument that because the agents did not
12
In United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019), the
Fourth Circuit clarified that the border search exception must have a
“transnational” nexus under Kolsuz. The criminal activity must have a
nexus “to the sovereign interests underlying the border search exception.”
Id. at 724. That nexus, is, of course, present in our case, where Cano
imported 31 pounds of cocaine.
16 UNITED STATES V. CANO
suspect him of these crimes the agents could not search his
electronic devices. Id. at 1191. The court explained that “the
Fourth Amendment does not require law enforcement officers
to close their eyes to suspicious circumstances.” Id. (brackets
and citation omitted).
The Eleventh Circuit is sure to follow. In United States v.
Touset, 890 F.3d 1227, 1234 (11th Cir. 2018), the court
already rejected Cotterman and found no reasonable
suspicion is necessary for forensic searches of electronic
devices at the border. The court also found that Riley, a case
Cano relies on extensively to narrow the scope of the border
search exception, 934 F.3d at 1011, 1020, has no application
at the border. 890 F.3d at 1234; see also United States v.
Vergara, 884 F.3d 1309, 1312–13 (11th Cir. 2018). In
combination, these two cases firmly reject the panel’s narrow
view.
Nor will these be the last circuits to disagree with us. The
Seventh and Fifth Circuits have already applied broader
definitions of reasonable suspicion when considering forensic
warrantless cell phone searches at the border under the good
faith exception. See United States v. Wanjiku, 919 F.3d 472,
485–88 (7th Cir. 2019) (finding agents had the good faith
belief that searches of defendant’s electronic devices only
required reasonable suspicion and agents did have reasonable
suspicion that the devices would “reveal evidence of criminal
activity involving minors” (emphasis added)); United States
v. Molina-Isidoro, 884 F.3d 287, 291–92 (5th Cir. 2018)
(finding agents had probable cause to search defendant’s
phone at the border because there was a high probability she
“was engaged in drug trafficking” and thus had a good faith
belief that their search was lawful).
UNITED STATES V. CANO 17
III.
This should have been a simple case. As the district court
recognized, under Cotterman the government agents had
more than reasonable suspicion of criminal activity to search
Cano’s phone. Cano, 222 F. Supp. 3d at 882. Cano was found
with 31 pounds of cocaine in his truck’s spare tire. Cano,
934 F.3d at 1008. The agents had, at minimum, reasonable
suspicion more drugs might be coming across the border,
which the Court has specifically recognized heightens the
sovereign’s concern “for the protection of the integrity of the
border.” Montoya de Hernandez, 473 U.S. at 538. These are
not the facts on which to effectively eliminate an exception
“as old as the Fourth Amendment itself.” Ramsey, 431 U.S.
at 619.
First, the sweeping language used by the Court in each of
its border search decisions cuts against narrowing the scope
or purpose of the border search exception. In only one
instance has the Court limited the border search doctrine, and
it did not narrow the scope but only increased the level of
suspicion necessary for a particularly intrusive type of search
of the person. See Flores-Montano, 541 U.S. at 152–53. The
Court has already twice reversed us for trying to impose
greater limits on the border search exception, see id.;
Montoya de Hernandez, 473 U.S. at 540–41, and has
cautioned us against creating new exceptions, Flores-
Montano, 541 U.S. at 152 (“Complex balancing tests to
determine what is a ‘routine’ search of a vehicle, as opposed
to a more ‘intrusive’ search of a person, have no place in the
border searches of vehicles.”).
18 UNITED STATES V. CANO
Second, the panel inexplicably limits the government’s
interest at the border to only stopping contraband.13 The panel
contends that “‘every border-search case the Supreme Court
has decided involved searches to locate items being
smuggled’ rather than evidence.” Cano, 934 F.3d at 1018
(quoting Molina-Isidoro, 884 F.3d at 295 (Costa, J., specially
concurring)).14 True, but this limited view reads the
sovereign’s interest far too narrowly. See United States v.
Oriakhi¸ 57 F.3d 1290, 1297 (4th Cir. 1995) (“While it is
undoubtedly true that border searches are more often
conducted in furtherance of the sovereign’s interest in
excluding” people and goods at the border, “that interest in
exclusion is not the only function of the border search.”).
The Court has explicitly stated that the exception is rooted
in “the long-standing right of the sovereign to protect itself,”
Ramsey, 431 U.S. at 616, and “the Government’s paramount
interest in protecting the border,” Flores-Montano, 541 U.S.
at 155. Statutory language and other circuit decisions reaffirm
the expansive reading that the inherent power of the
sovereign to protect itself, or the border, is not limited to
searching for contraband like child pornography. See, e.g.,
13
And even under the panel’s cramped view of the border search
exception, it is hard to see how the plenary authority “to prevent the
introduction of contraband into this country,” Montoya de Hernandez,
473 U.S. at 537, does not include within it the ability to prevent the future
introduction of contraband. The expansive view the Court has accorded
the Congress and the Executive in this realm should guide our analysis.
14
The panel’s view reads a lot like the dissent in Montoya de
Hernandez. See 473 U.S. at 554 (Brennan, J., dissenting) (arguing that
there is a difference at the border between Congress’s immigration and
customs authority and “searches [that] are carried out for purposes of
investigating suspected criminal activity”).
UNITED STATES V. CANO 19
6 U.S.C. § 211(e)(3) (the duties of the border patrol agents
includes duty to prevent not only contraband but also entry of
terrorists and terrorist weapons); 8 U.S.C. § 1357(c)
(immigration officials can “without warrant . . . [search] the
personal effects . . . of any person seeking admission to the
United States” based on “reasonable cause to suspect that
grounds exist for denial of admission to the United States . . .
which would be disclosed by such search”); 31 U.S.C.
§ 5317(b) (power to seize undeclared currency flowing
through the border); Kolsuz, 890 F.3d at 143 (transnational
offenses involving export controls and national security
interests “go[] to the heart of the border search exception”);
Molina-Isidoro, 884 F.3d at 297 (Costa, J., specially
concurring) (acknowledging contours of border-search
doctrine for phone searches should include government
interests in national security); see also United States v.
Boumelhem, 339 F.3d 414, 423 (6th Cir. 2003) (sovereign
interest to protect itself includes “significant government
interests in the realms of national security and relations with
other nations”).
Third, “[t]he distinction that [the panel] would draw
between contraband and documentary evidence of a crime is
without legal basis.” United States v. Gurr, 471 F.3d 144, 149
(D.C. Cir. 2006) (citing Warden, Md. Penitentiary v. Hayden,
387 U.S. 294, 301 (1967)) (rejecting this specific distinction
in the context of a border search). In Hayden, the Supreme
Court rejected the distinction between evidence and
contraband created by Boyd v. United States, 116 U.S. 616
(1886). 397 U.S. at 300–02. The Court explained that it has
“examined on many occasions the history and purposes of the
[Fourth] Amendment” and explained that “[n]othing in the
language of the Fourth Amendment supports the distinction
between ‘mere evidence’ and instrumentalities, fruits of
20 UNITED STATES V. CANO
crime, or contraband.” Hayden, 387 U.S. at 301–02. This
broad pronouncement leaves little room for the panel’s
position that Boyd militates a distinction between a search for
evidence and a search for contraband. See Cano, 934 F.3d
at 1018.
The panel’s decision also makes little constitutional sense
when filtered through the Fourth Amendment lens of
reasonableness.15 See Riley, 573 U.S. at 381–82 (“[T]he
ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” (quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006))). Why should border agents, with no
reasonable suspicion of anything, be able to manually look
for child pornography on a phone, but not evidence of:
(1) intent to commit terrorist acts, (2) inadmissibility of the
traveler to the United States, (3) other crimes, or even
(4) evidence of other contraband? And why should border
agents with reasonable suspicion that child pornography is on
a phone be able to forensically examine the phone, but be
constitutionally barred from forensically examining a phone
when they have reasonable suspicion that evidence of serious
border crimes—including those involving terrorism or false
identity documents—is on the phone? If such distinctions
make no sense, then they cannot possibly be reasonable.
15
The panel also engaged the type of “unrealistic second-guessing”
the Court prohibited in Montoya de Hernandez, 473 U.S. at 542, when it
concluded “there is no reason why border officials cannot obtain a warrant
before conducting their forensic search” because the time to get a warrant
is “trivial” when compared to the time necessary for a forensic search.
Cano, 934 F.3d at 1020. “[T]he fact that the protection of the public
might, in the abstract, have been accomplished by ‘less intrusive’ means
does not, in itself, render the search unreasonable.” Montoya de
Hernandez, 473 U.S. at 542 (citation omitted).
UNITED STATES V. CANO 21
And finally, judicial restraint is especially important here,
“where there is a longstanding historical practice . . . of
deferring to the legislative and executive branches.” Kolsuz,
890 F.3d at 153 (Wilkinson, J., concurring). One difficulty
with judicial decisions like the panel’s is they provide no
flexibility. Given the origin of the exception, surely the
current Congress should have some say in the current
officials’ ability to prevent future attempts to weaken the
border, “the point most freighted with security threats and the
point at which a nation asserts and affirms its very right to
nationhood.” Id. at 152. Instead, we rule in a vacuum in an
area where technological advances rapidly outpace our best
guesses and intuitions and “[w]e have no idea of the dangers
we are courting.” Id. at 150.
Ultimately, the panel’s decision to limit the border search
exception to searches for contraband finds “no support . . . in
the Supreme Court’s border-search cases . . . [and] ignores
the Court’s admonitions to interpret the doctrine broadly and
avoid creating new limitations.” United States v. Aigbekaen,
943 F.3d 713, 730 (4th Cir. 2019) (Richardson, J., concurring
in judgment) (challenging the majority for imposing even a
transnational nexus requirement on criminal activity for
border searches). It is the decision—and not the search of
Cano’s phone—that is unreasonable.
IV.
The panel made a final error by finding the cell phone
evidence obtained by the agents was not covered by the good
faith exception. The panel rejected the government’s reliance
on Cotterman because the panel re-interpreted Cotterman as
a “search for contraband that the government has a right to
seize at the border.” Cano, 934 F.3d at 1021–22. The panel
22 UNITED STATES V. CANO
applied its view of the case retroactively. That is not how the
good faith exception works.
The exclusionary rule does not apply to “[e]vidence
obtained during a search conducted in reasonable reliance on
binding [appellate] precedent.” United States v. Davis,
564 U.S. 229, 241 (2011). The inquiry in Davis “is not
answered simply by mechanically comparing the facts of
cases and tallying their similarities and differences.” United
States v. Lustig, 830 F.3d 1075, 1081 (9th Cir. 2016) (quoting
United States v. Katzin, 769 F.3d 163, 176 (3d Cir. 2014) (en
banc)). Thus, in Lustig, we held that “it was objectively
reasonable” for the government to rely on United States v.
Robinson, 414 U.S. 218 (1973), as binding precedent
authorizing the warrantless search of a cell phone incident to
arrest prior to Riley. 830 F.3d at 1080. Robinson announced
a categorial rule, based on a search of a cigarette package,
decades before the invention of the modern cell phone.
414 U.S. at 223. More importantly, we “reject[ed] Lustig’s
contention that the good-faith exception cannot apply here
because, at the time of his arrest, there had not been any
decision by this Circuit or the Supreme Court directly
authorizing warrantless cell phone searches incident to
arrest.” Lustig, 830 F.3d at 1082. Holding otherwise, “would
make the good-faith exception a nullity because the exception
would only apply when the search was necessarily
constitutional under existing precedent.” Id.
Similarly, the panel erred by applying its own view of
Cotterman as the appropriate comparison when no court had
ever so held, and the agents’ (and the district court’s) view
was, at the very least, reasonable. I fail to see how CBP
agents cannot rely on the “longstanding and expansive
authority of the government to search persons and their
UNITED STATES V. CANO 23
effects at the border,” Molina-Isidoro, 884 F.3d at 290, on top
of our decision in Cotterman, which announced a categorical
rule that forensic examinations of computers “required a
showing of reasonable suspicion,” 709 F.3d at 968. At the
time of the search, no court, much less the Supreme Court or
other appellate court, had held that a search of a cell phone
with reasonable suspicion of criminal activity was outside the
scope of the border search exception. As Judge Costa
concluded on nearly identical facts (as to the evidence
obtained through the manual search), “the existence of good
faith [here] is not a close call.” Molina-Isidoro, 884 F.3d
at 293 (Costa, J., specially concurring).
The exclusionary rule “exacts a heavy toll on both the
judicial system and society at large” because “its bottom-line
effect, in many cases, is to suppress the truth and set the
criminal loose in the community without punishment.” Davis,
564 U.S. at 237. For the cost to be acceptable, “the deterrence
benefits of suppression must outweigh its heavy costs.” Id.
When law enforcement officers “act with an objectively
reasonable good-faith belief that their conduct is lawful . . .
the deterrence rationale loses much of its force, and exclusion
cannot pay its way.” Id. (quotation marks and citations
omitted). Requiring law enforcement officers to be
Nostradamus, as the panel did here, improperly turns the
good faith exception on its head, and requires the “court[] to
ignore reliable, trustworthy evidence”—a “bitter pill” to
swallow with no deterrence benefit. Id. at 237.
V.
The panel’s decision contradicts the history of the border
search exception and the Supreme Court’s teachings as to the
almost plenary nature of the sovereign’s authority at the
24 UNITED STATES V. CANO
border. The decision also makes a judgment untethered from
any Fourth Amendment reasonableness calculus—drawing an
unprecedented at-the-border distinction between reasonable
suspicion of border-related crimes in general (not enough)
and reasonable suspicion of the presence of contraband
(enough). This is the exact type of distinction (if it is to be
drawn) that must be left to the political branches. And finally,
the decision rewrites the good faith exception, penalizing
border officers for incorrectly divining future courts’ views
on presently clear binding appellate precedent. For these
reasons, I respectfully dissent from the denial of rehearing en
banc.