U.S. v. Wanjiku

• Decision Date: 19 March 2019
• Docket Number: No. 18-1973,18-1973
• Citation: 919 F.3d 472
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald WANJIKU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

919 F.3d 472

UNITED STATES of America, Plaintiff-Appellee,

v.Donald WANJIKU, Defendant-Appellant.

No. 18-1973

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2018

Decided March 19, 2019

Christopher V. Parente, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joshua Herman, Attorney, Law Office of Joshua G. Herman, Chicago, IL, for Defendant-Appellant.

Esha Bhandari, Attorney, American Civil Liberties Union, New York, NY, Amici Curiae American Civil Liberties Union Foundation, Roger Baldwin Foundation of the American Civil Liberties Union, Electronic Frontier Foundation.

Rebecca Kim Glenberg, Attorney, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for Amicus Curiae Roger Baldwin Foundation of the American Civil Liberties Union.

Adam D. Schwartz, Attorney, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae Electronic Frontier Foundation.

Before Rovner, Sykes, and Barrett, Circuit Judges.

Rovner, Circuit Judge.

Donald Wanjiku pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252A, but he retained his right to appeal the district court’s denial of his motion to suppress the primary evidence against him. That evidence included photographs and videos recovered from his cell phone, laptop and external hard drive during a warrantless border search at O’Hare International Airport. We affirm.

I.

On June 9, 2015, Wanjiku arrived at O’Hare after a trip to the Philippines. Unbeknownst to Wanjiku, Customs and Border Patrol ("CBP") and Homeland Security Investigations ("HSI") were together conducting a criminal investigation dubbed "Operation Culprit" at the airport that day. Operation Culprit targeted certain individuals returning from three countries known to investigators for "sex tourism" and sex trafficking, including the sex trafficking of children. The investigators developed a list of initial criteria to identify individuals of interest to Operation Culprit: (1) U.S. citizen (2) men (3) between the ages of eighteen and fifty or sixty (4) returning from the Philippines, Thailand, or Cambodia (5) traveling alone (6) with a prior criminal history. Along with an unspecified number of other passengers from the eight to ten flights that investigators were monitoring that day, Wanjiku met all of the initial screening factors. That is, he is a U.S. citizen male, then aged forty-one, returning from the Philippines, traveling without any apparent companion, with a prior arrest.

Investigators sought to whittle down the resulting list by further investigating these travelers before they arrived at O’Hare. Using government databases¹ and publicly available social media, they determined that Wanjiku’s prior arrest was for contributing to the delinquency of a minor,² that this was his third trip to the Philippines in two years, that this trip was sixty days in length, and that he had no apparent affiliation with the Philippines other than these trips. For example, they were unable to find business or family ties to the Philippines for Wanjiku. The investigators determined that Wanjiku had booked a prior flight using an email address that incorporated the name "Mr. Dongerous," which heightened their suspicions based on their belief that this was a play on the word "dong," which is vulgar slang for penis.³ Using that email address, they searched Facebook and found a public Facebook page associated with that address. The person in the profile picture (whom they believed to be Wanjiku) was wearing a mask of the type that one wears to a masquerade ball. Photos of "friends" on that page appeared to be "very young" relative to Wanjiku’s age.⁴ The investigators for Operation Culprit found all of this suspicious enough to warrant sending Wanjiku to a more thorough secondary inspection on his arrival at the airport.⁵

After Wanjiku passed through the primary inspection point and was referred to the secondary inspection area in Baggage Hall A, CBP Officer Toler met Wanjiku for a more thorough secondary inspection. Toler testified that, at the secondary inspection area, he typically would take the traveler’s bags and then obtain a binding declaration from that person. He would then ask what the traveler was doing outside of the United States, obtain a story about the trip, and then go through the traveler’s bags to see if the contents of the bags corroborated the traveler’s answers. Toler candidly testified at the suppression hearing that investigators had already decided to inspect the contents of Wanjiku’s cell phone and other electronic devices before he reached the secondary inspection point (indeed, before he reached the primary inspection point) on the basis of the information that they had gathered prior to his arrival. Nevertheless, before those devices were actually inspected, Wanjiku gave the investigators additional cause for concern. For openers, at the primary inspection point, the officer interacting with Wanjiku indicated in notes to the secondary inspector that Wanjiku was "evasive for questioning."

At the secondary inspection area in Baggage Hall A, Wanjiku came to Toler’s attention even before Toler could begin his usual inspection process. Toler saw Wanjiku leave the line of persons awaiting inspection, something Toler had never seen a passenger do before. As Toler later learned from an Immigration and Customs Enforcement ("ICE") agent, Wanjiku left Baggage Hall A and walked approximately two hundred feet away and across an exit corridor to a bathroom in Baggage Hall B, even though there was an identically marked bathroom much closer in Baggage Hall A. Wanjiku left his luggage in the line when he took this walk and an ICE agent escorted him back to the line.

At the beginning of the inspection, Toler asked Wanjiku why he had left the line. Wanjiku replied that he had heat stroke

and needed to use the bathroom. Toler noted that Wanjiku was sweating profusely in the air conditioned hall, was shifting his weight, and seemed visibly nervous. Toler then asked Wanjiku about the trip itself, and Wanjiku said he had been visiting friends in the Philippines for two months. In response to Toler’s questions, Wanjiku also revealed that he had left the U.S. with $6000 and was returning with just a few hundred dollars. He had stayed at the home of the friends he was visiting. Because Wanjiku had reported on a Customs Declaration form that he was not bringing in items exceeding $800 in value and because he had said he was staying with friends, Toler asked him how he had spent more than $5000 during the trip. Wanjiku gave vague and evasive answers, saying only that his friends had shown him around the country. He also told Toler that he sometimes sent or gave money to the family he stayed with in order to help their child attend school. He went to the Philippines, he said, in part to make sure his money was being put to good use. Toler asked where Wanjiku traveled in the Philippines and he would not elaborate, saying only that his friends showed him around the country. Toler went through the list of questions that a traveler normally must answer on the standard Customs Declaration form, including whether he was bringing in more than $10,000 in currency, food, cell cultures, snails, or gifts, among other things.

After obtaining a binding declaration from Wanjiku, Toler prepared to inspect Wanjiku’s two large bags and single carry-on bag. He asked if the bags belonged to Wanjiku and whether Wanjiku himself had packed them. Wanjiku responded affirmatively to both questions. In response to Toler’s questions, he denied that there were any sharp objects in the bags that could possibly poke, cut or hurt Toler as he went through the bags. Toler and another agent then opened the bags. They set aside Wanjiku’s cell phone, laptop and portable hard drive for later inspection. In one bag, Toler found a pocket full of receipts, including multiple receipts for hotel stays. Most were for one-night stays, and two were for one-night stays at the same hotel approximately one week apart. Because Wanjiku had previously told Toler that he stayed with friends, Toler asked what the hotel receipts were for. Wanjiku said that his friend showed him around the country and these receipts were from those trips. That answer heightened Toler’s suspicions both because Wanjiku had previously given the address of the friend as the place he stayed and because Toler deemed it unusual to stay at the same hotel twice in the span of a week if a person is traveling around the country. He asked Wanjiku about the dual receipts for the same hotel specifically and Wanjiku would not elaborate, instead asking Toler whether it was illegal to go around the country or have a friend show him around the country.

Toler next found a pocket containing syringes and condoms, which upset him because Wanjiku had denied that the bags contained sharp objects, putting Toler at risk of injury. When asked about the syringes, Wanjiku explained that he had medication in his other bag. The injectable medication recovered from the other bag was to treat low testosterone

. The second bag also contained oxycodone and OxyContin pills, a narcotic pain medication. The medications raised additional red flags for Toler because he believed that testosterone was a "sexually specific" substance related to "male genitalia." R. 59, Tr. at 34. Moreover, both medications were in the name Donald Kwiatkowski, not Donald Wanjiku. Wanjiku explained that he had changed his name, and offered a social security card issued in his prior name to support his claim.

After completing this check of Wanjiku’s bags, Toler turned his attention to the cell phone. The phone was password-protected, and Toler began by asking Wanjiku to unlock the phone. Wanjiku initially resisted but relented when Toler told him that everything was searchable at the border and that the phone would be seized, unlocked by a "lab," and examined whether or...