934 F.3d 1002 (9th Cir. 2019), 17-50151, United States v. Cano

Docket Nº:17-50151
Citation:934 F.3d 1002
Opinion Judge:BYBEE, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel CANO, Defendant-Appellant.
Attorney:Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant. Mark R. Rehe, Assistant United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; Unit...
Judge Panel:Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool, District Judge.
Case Date:August 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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934 F.3d 1002 (9th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Miguel Angel CANO, Defendant-Appellant.

No. 17-50151

United States Court of Appeals, Ninth Circuit

August 16, 2019

Argued and Submitted April 10, 2019 Pasadena, California

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Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

Mark R. Rehe, Assistant United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; 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.

Appeal from the United States District Court for the Southern District of California, Barry Ted Moskowitz, District Judge, Presiding, D.C. No. 3:16-cr-01770-BTM-1

Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool,[*] District Judge.

SUMMARY

[**]

Criminal Law

The panel reversed the district court's order denying the defendant's motion to suppress evidence obtained from warrantless searches of his cell phone by Customs and Border Protection officials, and vacated his conviction for importing cocaine.

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that "reasonable suspicion" in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The panel further concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime cannot be justified by the purposes of the border search exception to the Fourth Amendment warrant requirement.

The panel held that to the extent that a Border Patrol agent's search of the defendant's phone - which included the recording of phone numbers and text messages for further processing - went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of a border search and was unreasonable as a border search under the Fourth Amendment. The panel held that although the agents had reason to suspect the defendant's phone would contain evidence leading to additional drugs, the record does not give rise to an objectively reasonable suspicion that the digital data in the phone contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the defendant's phone. The panel held that the good faith exception to the exclusionary rule does not apply because the border officials did not rely on binding appellate precedent specifically authorizing the cell phone searches at issue here.

Rejecting the defendant's contention that the government violated his rights under Brady v, Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16, by failing to turn over certain information he requested from the FBI and DEA in pursuit of this third-party defense, the panel found no evidence that the prosecution had knowledge or possession of evidence showing that the defendant's cousin or his cousin's gang were involved in drug trafficking at the Mexico-California border, and held that the prosecutor should not be held to have "access" to any information that an agency not involved in the investigation or prosecution of the case refuses to turn over.

OPINION

BYBEE, Circuit Judge:

Defendant-Appellant Miguel Cano was arrested for carrying cocaine as he attempted to cross into the United States from Mexico at the San Ysidro Port of Entry. Following his arrest, a Customs and Border Protection official seized Cano’s cell phone and searched it, first manually and then using software that accesses all text messages, contacts, call logs, media, and application data. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone, the district court held that the searches were valid under the border search exception to the Fourth Amendment’s warrant requirement.

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), we conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. We clarify Cotterman by holding that "reasonable suspicion" in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. In this case, the officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Accordingly, we hold that most of the evidence from the searches of Cano’s cell phone should have been suppressed. We also conclude that Cano’s Brady claims are unpersuasive. Because we vacate Cano’s conviction, we do not reach his claim of prosecutorial misconduct.

We reverse the district court’s order denying Cano’s motion to suppress and vacate Cano’s conviction.

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I. THE BACKGROUND

A. The Facts

Defendant-Appellant Miguel Cano worked in the flooring and carpet installation trade and lived with his wife and children in the Mission Hills community north of Los Angeles. In the summer of 2016, however, Cano moved from Los Angeles to Tijuana, Mexico, where he stayed with his cousin Jose Medina. While staying with Medina, Cano crossed the border into the United States six times, sometimes remaining in the United States for less than thirty minutes. On two of those trips, Cano was referred to secondary inspection, but no contraband was found.

On July 25, 2016, Cano arrived at the San Ysidro Port of Entry from Tijuana. In primary inspection, Cano stated that "he was living in Mexico, working in San Diego, but going to LA on that day." Pursuant to a random Customs and Border Protection (CBP) computer referral, Cano was referred to secondary inspection, where a narcotic-detecting dog alerted to the vehicle’s spare tire. A CBP official removed the spare tire from the undercarriage of the truck and discovered 14 vacuum-sealed packages inside, containing 14.03 kilograms (30.93 pounds) of cocaine.

Cano was arrested, and a CBP official administratively seized his cell phone. The CBP officials called Homeland Security Investigations (HSI), which dispatched Agents Petonak and Medrano to investigate. After arriving, Agent Petonak "briefly" and manually reviewed Cano’s cell phone, noticing a "lengthy call log" but no text messages. Agent Petonak later stated that the purpose of this manual search was "two-pronged": "to find some brief investigative leads in the current case," and "to see if there’s evidence of other things coming across the border."

Agent Petonak proceeded to question Cano, who waived his Miranda rights and agreed to talk. During that interview, Cano denied any knowledge of the cocaine. Cano stated that he had moved to Tijuana to look for work in nearby San Diego, because work was slow in Los Angeles. He also said he had crossed the border every day for the previous three weeks looking for work. He told Agent Petonak that he was headed to a carpet store in Chula Vista that day to seek work. When pressed, Cano was not able to provide the name or address of the store, claiming that he intended to look it up on Google after crossing the border. Cano also explained that he did not have his flooring tools with him in his pickup truck so as to avoid problems with border crossings; Cano intended to drive to Los Angeles to retrieve his tools if he located work in San Diego.

During the interrogation, Agent Petonak specifically asked Cano about the lack of text messages on his cell phone. Cano responded that his cousin had advised him to delete his text messages "just in case" he got pulled over in Mexico and police were to check his cell phone. Cano stated that he erased his messages to avoid "any problems" with the Mexican police.

While Agent Petonak questioned Cano, Agent Medrano conducted a second manual search of the cell phone. Agent Medrano browsed the call log and wrote down some of the phone numbers on a piece of paper. He also noticed two messages that arrived after Cano had reached the border, and he took a photograph of the messages. The first message stated, "Good morning," and the second message stated, "Primo, are you coming to the house?" Agent Medrano gave all of this information— the recorded list of calls and the photograph— to Agent Petonak.

Finally, Agent Medrano conducted a "logical download" of the phone using Cellebrite software. A Cellebrite search enables the user to access text messages, contacts, call logs, media, and application

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data on a cell phone and to select which types of data to download. It does not, however, allow the user to access data stored within third-party applications. Agent Medrano typically does not select the option to download photographs.

After Agent Petonak interviewed Cano, he reviewed the results of the Cellebrite download of Cano’s phone by Agent Medrano. The Cellebrite results revealed that Cano had sent no...

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