United States v. Cano
| Decision Date | 23 November 2016 |
| Docket Number | Case No.: 16–cr–01770–BTM |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Miguel Angel CANO, Defendant. |
Adriana Eugenia Ahumada, DOJ—U.S. Attorney's Office, San Diego, CA, for Plaintiff.
Ryan W. Stitt, Federal Defenders, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
ORDER DENYING MOTION TO SUPPRESS AND MOTION FOR RETURN OF PROPERTY
Presently before the Court are Defendant's motion to suppress and motion for return of property. The Court held an evidentiary hearing on these matters on October 25, 26 and 31, 2016. For the reasons discussed below, Defendant's motions are DENIED .
On July 25, 2016 at approximately 6:30 a.m., Defendant, Miguel Angel Cano, applied for entry to the United States at the San Ysidro Port of Entry ("POE"). A Customs and Border Protection ("CBP") officer conducted a primary inspection of Defendant and his pick-up truck. The CBP officer subsequently referred Defendant to secondary inspection.
During secondary inspection, a dog alerted to the spare tire located underneath the bed of the truck. Secondary officers handcuffed Defendant shortly thereafter. Defendant was taken to the security office where he was handcuffed to a bench. CBP officers cut the spare tire open and found approximately 16.52 kilograms of cocaine. Defendant was subsequently placed under arrest.
After the cocaine was found, CBP officers called the Homeland Security Investigations ("HSI") office, which dispatched Special Agents ("SA") Petonak and Medrano to investigate. Upon arriving at the POE, SA Petonak spoke to the seizing CBP officers, inspected Defendant's vehicle and property, and reviewed Defendant'scrossing records. SA Petonak also did a cursory inspection of Defendant's cell phone to look for relevant text messages and recent calls. SA Medrano conducted a "logical download" of Defendant's cell phone using Cellebrite technology. A "logical download" has the capability of downloading text messages, contacts, call logs, media, and application data, though not messages contained within the applications themselves. He also took notes of incoming and outgoing calls. He related his findings to SA Petonak after his interview of Defendant.
At around 9:50 a.m., SA Petonak began his interview of Defendant. SA Petonak advised Defendant of his Miranda rights and obtained a written waiver of them. Defendant agreed to speak to SA Petonak without an attorney present. During the interview SA Petonak asked Defendant about his recent crossing history and the reason for his recent move to Mexico. Defendant's post-Miranda interview ended at about 10:20 a.m. Defendant was transported to the Metropolitan Correctional Center ("MCC") in San Diego and booked during the 5:30 p.m. booking window. The following day, on July 26, 2016, Defendant made his initial appearance before Judge Stormes.
On August 5, 2016, Judge Adler granted the government a search warrant for Defendant's cell phone and ordered that it be executed by August 19, 2016.
Defendant moves to suppress all evidence derived from the search of his cell phone at the POE, contending that his Fourth Amendment rights were violated because the agents searched his cell phone without a warrant. He also petitions the Court for the return of his cell phone under Federal Rule of Criminal Procedure 41(g). Lastly, Defendant argues that his statements should be suppressed as an appropriate remedy for a Federal Rule of Criminal Procedure Rule 5(a) violation. The Court addresses each argument below.
Defendant argues that the agents' search of his cell phone on July 25, 2016 does not fall into any recognized exceptions to the Fourth Amendment's warrant requirement. Defendant relies on Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), to argue that the search incident to arrest doctrine does not apply. He further argues that the search does not fall within the border search exception to the Fourth Amendment because its purpose was to further the agents' investigation, rather than to prevent the entry of unwanted persons or contraband. The Government submits that United States v. Cotterman , 709 F.3d 952 (9th Cir. 2013) (en banc), supports the "logical search" of Defendant's cell phone—regardless of whether it is deemed a cursory or forensic search.
In Riley , the Supreme Court held that police officers must get a warrant before searching a cell phone seized incident to arrest. 134 S.Ct. at 2495. Defendant argues that because he was already arrested when the agents arrived at the POE, the warrantless search of his phone was performed as a search incident to arrest and was impermissible under Riley.
However, the search incident to arrest doctrine is one of numerous exceptions to the Fourth Amendment's warrant requirement. In fact, even the Supreme Court in Riley recognized that although "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." Riley , 134 S.Ct. at 2494. Though the Supreme Court did not specifically address the border search exception, Riley does not preclude the application of such doctrine.
Border searches have long been recognized as a narrow exception to the Fourth Amendment's warrant requirement. See Cotterman , 709 F.3d at 956. Courts have repeatedly held that searches performed at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into the United States, are "reasonable simply by virtue of the fact that they occur at the border." Cotterman , 709 F.3d at 960. However, border searches are not without limits. Id. "Even at the border, individual privacy rights are not abandoned but balanced against the sovereign's interests." Id.
Defendant submits that the justification for a border search exception, preventing the entry of unwanted persons or contraband, is inapplicable here. Defendant argues that because he was already in custody, and the drugs and his phone were seized before the agents arrived at the POE, the agents' search of his phone was "investigatory" in nature. That is, they performed the search to gather evidence in an ongoing criminal investigation. Defendant thus attempts to draw a line between searches that are performed for the purpose of preventing the entry of unwanted persons or things, like those at issue in United States v. Arnold , 533 F.3d 1003, 1009 (9th Cir. 2008) and Cotterman , and "investigatory" searches.
Though not framed as an inquiry into the actual motivations of the agents, Defendant's argument is effectively seeking that the Court give weight to the agents' subjective intent and motivations behind their search. However, courts have repeatedly held that the Fourth Amendment's reasonableness analysis is "predominately an objective inquiry." Ashcroft v. al-Kidd , 563 U.S. 731, 736, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). In upholding a "pre-text stop," the Supreme Court in Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), reaffirmed the principle that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." There, police officers discovered drugs after allegedly conducting a pretextual traffic stop. Id. at 808–809, 116 S.Ct. 1769. The Supreme Court rejected the argument that "ulterior motives can invalidate police conduct justified on the basis of probable cause" and ultimately upheld the temporary detention of the defendant upon probable cause that he had violated a traffic law. Id. at 812, 116 S.Ct. 1769. It stated: "[n]ot only have we never held, outside the context of inventory search or administrative inspection ..., that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary." Id.
The Supreme Court has only recognized two limited exceptions to this general rule: 1) special-needs search cases1 ; and 2) administrative-search cases2 . See al-Kidd , 563 U.S. at 736, 131 S.Ct. 2074 ; see also City of Indianapolis v. Edmond , 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (). Apart from those cases, the Supreme Court has "almost uniformly rejected invitations to probe subjective intent." al-Kidd , 563 U.S. at 737, 131 S.Ct. 2074. As the Supreme Court phrased the inquiry, when determining whether a search or seizure is reasonable under the Fourth Amendment," we ask whether "the circumstances, viewed objectively, justify the challenged action." Id. at 736, 131 S.Ct. 2074. If so, then that action was reasonable " ‘whatever the subjective intent’ motivating the relevant officials." Id. (quoting Whren , 517 U.S. at 814, 116 S.Ct. 1769 ).
As such, border search cases do not turn on the purpose or motivation behind the search. Rather, they focus on the degree of intrusiveness in light of the sovereign's interest at the border. In United States v. Hsi Heui TSAI , 282 F.3d 690, 694 (9th Cir. 2002), the Ninth Circuit specifically addressed whether the alleged investigative purpose of a search conducted at the border took it outside the scope of a "routine" border search. There, the defendant had flown into Hawaii from Guam. Id. at 694. The defendant argued that because the INS inspector knew that he was suspected of criminal activity in Guam, the search of his briefcase was conducted for purposes of criminal investigation, not as a "routine" border...
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United States v. Cano
...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......