United States v. Camou, 12–50598.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPREGERSON
Citation773 F.3d 932
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Chad Daniel CAMOU, Defendant–Appellant.
Docket NumberNo. 12–50598.,12–50598.
Decision Date11 December 2014

773 F.3d 932

UNITED STATES of America, Plaintiff–Appellee,
Chad Daniel CAMOU, Defendant–Appellant.

No. 12–50598.

United States Court of Appeals, Ninth Circuit.

Argued May 7, 2013
Submitted Dec. 11, 2014


[773 F.3d 934]

James Fife and Jason Ser, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Alessandra P. Serano, Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

[773 F.3d 935]

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:11–cr–05027–H–1.
Before: HARRY PREGERSON and RAYMOND C. FISHER, Circuit Judges, and JAMES S. GWIN, District Judge.


PREGERSON, Circuit Judge:

Chad Camou appeals the district court's denial of his motion to suppress images of child pornography found on his cell phone during a warrantless search. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

I. Camou's Arrest and the Seizure of Camou's Cell Phone at 10:40 p.m.

On August 1, 2009, United States Border Patrol agents stopped a truck belonging to Chad Camou at a primary inspection checkpoint on Highway 86 in Westmorland, California. Camou was driving the truck, while his girlfriend, Ashley Lundy, sat in the passenger seat. Agents at the checkpoint grew suspicious when Lundy did not make eye contact, so they asked Camou if they could open the door to the truck. Once they opened the door, the agents saw Alejandro Martinez–Ramirez (Martinez–Ramirez), an undocumented immigrant, lying on the floor behind the truck's front seats. Consequently, at about 10:40 p.m., agents arrested and handcuffed Camou, Lundy, and Martinez–Ramirez. At the same time, agents also seized Camou's truck and a cell phone found in the cab of the truck. Agents then moved Camou, Lundy, and Martinez–Ramirez into the checkpoint's security offices for booking.

II. Agents Processed, Booked, and Interviewed Camou at the Security Offices

Once at the checkpoint's security offices, Border Patrol agents processed and booked Camou and Lundy. At some point during the booking process, Border Patrol Agent Andrew Baldwin inventoried Camou's cell phone as “seized property and evidence.”

Agents then began to interview Camou and Lundy. Lundy was given Miranda warnings. It is unclear whether Camou was given Miranda warnings or whether he said anything to the agents at this point. Neither Camou nor Lundy asked for an attorney.

During Lundy's initial interview with Border Patrol Agent Richard Walla, Lundy waived her Miranda rights and explained that, before she and Camou picked up Martinez–Ramirez, Camou had received a phone call from Jessie, a.k.a. “Mother Teresa.” “Mother Teresa” arranged for Camou to pick up Martinez–Ramirez in Calexico, California and transport him to either Palm Desert, California or Coachella, California. During Lundy's interview, Camou's cell phone rang several times. The caller identification screen on the phone displayed the phone number that Lundy had identified as belonging to “Mother Teresa.” Agents asked Camou if the cell phone belonged to him. Camou replied, “Yes.”

Border Patrol Agents Jason Masney and Ciudad Real attempted to further interview Martinez–Ramirez, Camou, and Lundy.

[773 F.3d 936]

Martinez–Ramirez told the agents that he had been in the car for about forty minutes and that Camou had planned to take him to Los Angeles. Camou invoked his right to remain silent. Lundy, meanwhile, agreed to answer more questions. She told the agents that she and Camou had been smuggling undocumented immigrants about eight times per month for about nine months. She explained that Camou would receive phone calls from smugglers on his cell phone both before and after passing the Highway 86 checkpoint.

III. Warrantless Search of Camou's Cell Phone at 12:00 a.m.

At 12:00 a.m., one hour and twenty minutes after Camou's arrest, Agent Walla searched Camou's cell phone. In his subsequent report, Agent Walla claimed he was looking for evidence of “known smuggling organizations and information related to the case.” Agent Walla did not assert that the search was necessary to prevent the destruction of evidence or to ensure his or anyone else's safety.

Agent Walla searched the call logs of the cell phone and discovered several recent calls from “Mother Teresa.” Agent Walla closed the call logs screen and opened the videos stored on the phone's internal memory. He saw several videos that appeared to be taken near the Calexico, California Port of Entry. He then closed the videos and opened the photographs, which were also stored on the phone's internal memory. He “scrolled quickly through about 170 of the images before stopping. Of the images he viewed, about 30 to 40 were child pornography. Walla was disturbed by the images and stopped reviewing the contents of the phone.”

After stopping the search, Agent Walla called U.S. Immigration and Customs Enforcement, the Imperial County Sheriff's Office, and the FBI to pursue child pornography charges against Camou. Assistant United States Attorney John Weis at the El Centro Sector Prosecutions Office did not pursue alien smuggling charges against Camou because Weis decided that the smuggling case against Camou “did not meet prosecution guidelines.” Weis informed Border Patrol agents of his decision the same day Camou's cell phone was searched by Agent Walla.

Several days later, on August 5, 2009, the FBI executed a federal warrant to search Camou's cell phone for child pornography. Pursuant to the warrant, the FBI found several hundred images of child pornography on the cell phone.

IV. District Court Proceedings

A grand jury indicted Camou for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Camou moved the district court to suppress the child pornography images found on his cell phone, arguing that the warrantless search of his cell phone at the checkpoint's security offices violated his Fourth Amendment rights. The district court denied Camou's motion. The district court found that the search of the phone was a lawful search incident to arrest and, even if the search was unconstitutional, the good faith and inevitable discovery exceptions to the exclusionary rule were satisfied.

Camou entered a conditional guilty plea to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Camou was sentenced to thirty-seven months in prison followed by five years of supervised release. Camou is currently serving his prison sentence. Camou appeals the district court's denial of his motion to suppress.

[773 F.3d 937]


We review de novo the district court's denial of a motion to suppress. United States v. Song Ja Cha, 597 F.3d 995, 999 (9th Cir.2010). We review the district court's underlying factual findings for clear error. Id. We review de novo the application of the good faith and inevitable discovery exceptions to the exclusionary rule. United States v. Krupa, 658 F.3d 1174, 1179 (9th Cir.2011).


Camou argues that the warrantless search of his cell phone was unconstitutional because the search was not incident to arrest, and no other exceptions to the warrant requirement apply. Camou also argues that the exclusionary rule bars the admissibility of the images found on his phone. We agree.

I. Search Incident to Arrest

A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment. The exception allows a police officer making a lawful arrest to conduct a search of the area within the arrestee's “immediate control,” that is, “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (internal quotation marks omitted), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 344, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

The first requirement of a search incident to arrest is that the search be limited to the arrestee's person or areas in the arrestee's “immediate control” at the time of arrest. Gant, 556 U.S. at 339, 129 S.Ct. 1710; Chimel, 395 U.S. at 763, 89 S.Ct. 2034; United States v. Turner, 926 F.2d 883, 887 (9th Cir.1991). The “immediate control” requirement ensures that a search incident to arrest will not exceed the rule's two original purposes of protecting arresting officers and preventing the arrestee from destroying evidence: “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” Gant, 556 U.S. at 339, 129 S.Ct. 1710.1

The second requirement of a search incident to arrest is that the search be spatially and temporally incident to the arrest. See United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir.1996). The Supreme Court has held that “warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest ... if the search is remote in time or place from the arrest....” Chadwick, 433 U.S. at 15, 97 S.Ct. 2476 (emphasis added). We have interpreted the temporal requirement to mean that the search must be “roughly contemporaneous with the arrest.”

[773 F.3d 938]

United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004) (per curiam).

We have summed up the two general requirements of a valid search incident to arrest as follows: “The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee's immediate control when he was arrested’; (2) did ‘events occurring after...

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